Ind. Decisions - Still more on "WellPoint, Inc. Agrees to Pay $90 Million to Settle Class Action Suit"

Thousands of former Indiana policyholders in Anthem insurance soon will be getting checks in the mail.

About 660,000 former policyholders of the Indianapolis insurer will share in a $90 million settlement approved last week by a federal judge.

Payments to most people will range from $19 to $425, according to court documents. Most live in Indiana, Ohio, Kentucky and Connecticut.

Anthem's parent, Indianapolis health benefits company WellPoint, agreed to the settlement in June, ending seven years of litigation against it by its former policyholders. * * *

The judge said she would take under advisement a motion to award $30 million in settlement money for plaintiffs' attorney fees. The main plaintiffs' attorneys are Dennis Paul Barron of Naples, Fla.; Eric Zagrans of Beachwood, Ohio; and Peter Kahana of Philadelphia. In addition, the plaintiffs' team included local counsel Delaney & Delaney of Indianapolis, Michael Becker of Cleveland, and two law firms that joined the case in 2010 for their class-action expertise: Berger & Montague of Philadelphia and Keller Rohrback of Seattle.

The judge approved reimbursing plaintiffs' attorneys for $6.2 million in expenses, the bulk of it fees paid to experts.

A total of 707,489 people were eligible for settlement payments, but about 48,000 of them have died or can't be found, plaintiffs' attorneys said.

Courts - "Hawaii Judicial posts lure fewer applicants"

The release of the data was a result of the commission amending its rules last year to lift some of its confidentiality restrictions.

The changes included releasing the names of the commission’s finalists for judicial positions when the panel submits its lists to the governor and chief justice.

Under the state Constitution, the governor must fill vacancies on the Hawaii Supreme Court, the state appeals court and the circuit courts from lists of names submitted by the commission.

The chief justice picks district court judges from the commission’s lists.

All appointments are subject to state Senate confirmation.

The lists of finalists have been made public in the past, but the nine-member commission released Tuesday the total number of applicants and their genders for judicial appointments for the past 10 years — information that previously was confidential. * * *

[I]t appears that the applications for higher judicial positions have decreased.

For the high court, 24 — 18 men and six women — applied for the vacancy that was filled by former Associate Justice James Duffy in 2003.

Only 10 (eight men and two women) applied in 2009 for another high court vacancy, seven (six men and one woman) applied for a high court vacancy last year and nine (six men and three women) applied for a vacancy this year.

Former Gov. Linda Lingle named Mark Recktenwald to fill the 2009 vacancy. Gov. Neil Abercrombie appointed to the high court Sabrina McKenna — the only female applicant — last year and Richard Pollack this year.

For the 2010 chief justice vacancy, 12 people (nine men and three women) applied for the position now held by Recktenwald.

The commission must submit four to six names for vacancies on the high court, which resulted in a majority of the applicants making the finalist lists for the last two high court openings.

[Commission member Jeffrey] Portnoy said his view is that the number of private attorneys applying for the vacancies has been decreasing.

The commissioners said there may be a range of reasons for the decline.

They include judicial salaries, the application process, the Senate confirmation hearings, the disclosure of the finalists’ names, the constraints on judges’ lifestyles and the political inclinations of the appointing authority.

But some members agreed the major reason is the judicial pay in Hawaii, which was ranked lowest among the nation’s state courts in 2010.

“I would put it on the top of the list,” commission member James Bickerton said.

In an attempt to attract more candidates, the commission for the first time has been conducting informal meetings with lawyers throughout the state.

The aim is to inform lawyers about the commission and its operations, and persuade them to apply for judicial positions.

Ind. Decisions - Attorney suspended from practice for 3 years, without automatic reinstatement

Facts: On November 2, 2011, the Commission filed a 106-paragraph complaint consists of six counts alleging misconduct occurring from 2006 through 2011. The Commission charged Respondent with neglecting clients' cases, failing to do the work for which he was hired, failing to communicate with clients, failing to inform clients that medical problems would severely limit his ability to represent them, failing to inform clients of court orders and hearings, failing to appear at hearings and a pretrial conference, unilaterally terminating his representation of clients without protecting the clients' interests, failing to refund unearned fees, and failing to cooperate with the Commission. Respondent was served with the complaint and did not respond. Accordingly, the hearing officer took the facts alleged in the complaint as true. * * *

Discipline: Respondent's serial misconduct injured his clients and tarnished the reputation of the legal profession. Respondent is already under two suspension orders and failed to appear or in any way respond to the current charges against him. Although Respondent's medical problems may have contributed to his misconduct, such problems do not excuse misconduct, see Matter of Thomsen, 911 N.E.2d 575 (Ind. 2009), and Respondent presented no evidence on the issue. Under these circumstances, to protect the public and the integrity of the legal profession, the Court concludes that Respondent should be suspended from the practice of law for not less than three years. See Matter of Eckert, 867 N.E.2d 141 (Ind. 2007).

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of not less than three years, without automatic reinstatement, effective immediately. * * *

All Justices concur, except David, J., who dissents regarding the discipline, believing it to be insufficient, and would disbar Respondent.

By order dated August 31, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and further discussion among the justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as Whiskey Barrel Planters Co., Inc. v. American Gardenworks, Inc., 966 N.E.2d 711 (Ind. Ct. App. 2012), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

In defending against a petition to recover excess damages arising from a medical malpractice action, may the Indiana Patient’s Compensation Fund—after the healthcare provider settles with the plaintiff and admits liability—present evidence to dispute the existence or cause of the plaintiff’s injury? In some types of cases, we have previously said yes. In the type of case before us today, however, we say no. * * *

Because Indiana Code § 34-18-15-3(5) precludes the PCF from disputing the existence or cause of B.O.’s claimed injury, the trial court’s grant of partial summary judgment is affirmed.

Ind. Courts - "Three St. Joseph Superior Court judges are up for a retention vote on the Nov. 6 ballot"

Voters will be asked to decide whether Judge Jerome Frese, Judge Jenny Pitts Manier and Judge Margot Reagan each should stay on the bench for six more years.

St. Joseph and Lake counties are the only two counties in Indiana whose Superior Court judges are chosen through a merit system rather than elected. Judges are nominated by a committee of lawyers and citizens with the final choice made by the governor. Voters then decide every six years whether to retain them.

The process has been challenged from time to time. The latest, in 2009, ended with Gov. Mitch Daniels vetoing a bill to force nonpartisan election of all Superior Court judges. He concluded that St. Joseph County's process is a model that should be emulated, not discarded.

The downside, however, is that voters don't learn much about the judges. They don't campaign. They aren't forced to face an opponent and defend their records. And comparing judges one to another based on outcomes is difficult because of the complexity of cases.

No judge has failed a retention vote since the system was put in place in 1973.

The editorial continues:

The most valuable tool that most voters have is the St. Joseph County Bar Association's annual judicial survey.

Judicial performance is rated in various categories by attorneys who work with them every day. This year's survey results, released in September, overall ranked Frese "below average." It was the first such rating of a judge since the survey began in 2008.

Pitts Manier's overall score was higher than the above average score and Reagan's higher than average.

The details of the bar association survey represent the best resource many voters will have in deciding the retention questions. Read it online under election coverage at our website.

Ind. Decisions - Court of Appeals issues 3 today (and 16 NFP)

Kevin Clark appeals the admission of evidence found in his bag and in the trunk of his car. He also appeals the admission of police testimony regarding the conversion of pseudoephedrine to methamphetamine. We affirm. * * *

The trial court did not abuse its discretion in admitting the evidence gleaned from the search of Clark’s bag and car because the officers had reasonable suspicion to stop Clark and search Clark’s bag after he admitted it contained marijuana. Nor did the trial court abuse its discretion when it allowed Trooper Shortt to testify over Clark’s objection because her testimony was opinion testimony of a lay witness based on her experience, and not expert testimony. Accordingly, we affirm.

Larry Michael Caraway appeals his sentence for murder, a felony, following an open guilty plea. Caraway asks that we review and revise his sentence taking into consideration his remorse, guilty plea, and history of alcoholism. He presents a single issue for review: whether his sentence is inappropriate in light of the nature of the offense and his character. * * *

Caraway has not shown that his sentence is an outlier given the nature of the offense or his character. As such, we affirm his sentence.

Robertson Fowler appeals the denial of his petition for post-conviction relief. We affirm. * * *

When Fowler entered into his plea agreement, Indiana law permitted the State to use the same prior felony to support a charge of unlawful possession of a firearm by a serious violent felon and to support an habitual offender enhancement. See Townsend v. State, 793 N.E.2d 1092, 1097 (Ind. Ct. App. 2003), trans. denied. * * *

In June of 2007, after the State filed its Appellee’s brief, but while Fowler still could have filed a reply brief, our Indiana Supreme Court decided Mills v. State, which held “a defendant convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the defendant was a ‘serious violent felon’” 868 N.E.2d 446, 450 (Ind. 2007) (internal citation and quotation omitted). Fowler’s appellate counsel did not file a reply brief or Notice of Additional Authorities to assert the Mills decision might render Fowler’s sentence improper. Nor did he raise the issue in his transfer petition. Fowler’s sentence was affirmed on appeal, and his motion for post-conviction relief, which was premised on the Mills decision, was denied. * * *

[Illegal Sentence] Even though Fowler’s sentence would presumably have been illegal under the Mills rule, Fowler lost his right to pursue a challenge to it by entering into his plea agreement. A defendant may not enter a plea agreement calling for an illegal sentence, benefit from that sentence, and then later complain the sentence was illegal. Stites v. State, 829 N.E.2d 527, 529 (Ind. 2005). Defendants who plead guilty to achieve favorable outcomes give up a plethora of substantive claims and procedural rights, such as challenges to convictions that would otherwise subject the defendant to double jeopardy. Id. As Fowler received a benefit from his plea agreement, he is precluded from challenging his sentence as illegal. * * *

[Effectiveness of Appellate Counsel] In light of our resolution of the first issue, Fowler was not prejudiced by appellate counsel’s failure to raise Mills on direct appeal, and thus counsel’s assistance was not constitutionally ineffective. [cite omitted] However, we must address the State’s suggestion that ineffective assistance cannot be found if appellate counsel does not testify in a post-conviction proceeding. * * *

While we have no doubt it is more difficult to prove entitlement to post-conviction relief without the testimony of counsel, we cannot adopt the State’s apparent position that post-conviction relief is never available when appellate counsel does not testify in the post-conviction proceedings because “[i]t is possible [counsel] had reasons for not pursuing a claim.” (Id.) As it is presumably always “possible” there are unknown or undisclosed “reasons for not pursuing a claim,” adopting the State’s rationale would effectively preclude a post-conviction remedy in any case where counsel did not testify. We decline the State’s invitation to so hold.

Ind. Decisions - One today from Tax Court

This case concerns the applicability of Indiana’s public transportation sales and use tax exemption to purchases of a licensed common carrier. The Indiana Department of State Revenue determined that just a portion of Wendt LLP’s 2001 through 2004 purchases of tangible personal property were entitled to the public transportation exemption. The Court affirms in part and reverses in part. * * *

The issue before the Court is whether Wendt’s purchases of tangible personal property were predominantly used in providing public transportation and thus exempt under the public transportation exemption for the years at issue. * * *

Wendt claims the property at issue is entitled to exemption because it is predominantly used or consumed within its integrated public transportation process, while the Department counters that none of the property at issue is exempt because it is not directly used to furnish public transportation.

Mark Wilson has the story today in the Evansville Courier & Press. It begins:

An Evansville man initially arrested on felony charges after his car struck a 4-year-old boy on Sept. 30 can only be charged with a misdemeanor because of an Indiana statute that a deputy prosecutor compared to the confusing logic of federal tax code.

"If we could charge him with a felony we would," said Deputy Prosecutor Malcolm Gwinn.

Michelle Boyd, the boy's mother, said she was surprised to find that it wasn't the first time that Timothy L. Racine, 52, had been charged with driving with a suspended license this year. Yet according to Vanderburgh County court records, Racine failed to appear in Misdemeanor Court in August and September for hearings on two separate, previous charges.

Racine has not been convicted in any of the cases for which he is currently charged. He could not be reached for comment.

Both of the times that he failed to appear in previous cases, according to court records, a bench warrant was issued for Racine's arrest. Those warrants, however, were not served until Oct. 1 when he was already in custody for the Sept. 30 accident.

However, Superior Court Magistrate Sheila Corcoran released Racine on his own recognizance (without requiring bail) — a common practice in non-violent misdemeanor cases — and ordered him to appear in court at 1:30 p.m. Wednesday, at the same time that he is scheduled to appear on the misdemeanor charge from the Sept. 30 incident.

All this has been a nightmare of frustration for Boyd, who had been in Evansville from out of state with her son Caden to visit her parents and family when the incident happened. She said she is frustrated with what appears to her to be prosecutors' and court officials' unwillingness to do more to prevent Racine from driving, with or without a license.

Deputy Prosecutor Malcolm Gwinn, who handles the office's charging process, said Indiana law allows very little leeway for bumping the charge up from a Class A misdemeanor to a Class D felony of driving with a suspended license causing an injury accident.

"The way the statute reads his license had to be suspended as a result of the commission of a crime," he said. "It's horrible the way it is worded."

Gwinn said there are only two crimes for which a driver's license can be suspended: Driving while intoxicated or driving while in possession of marijuana, neither of which fit Racine's circumstances.

"It's a very poorly written statute," he said. "Why would you limit criminal liability when you have someone driving with a suspended license to just the offenses for which it was suspended?"

On Wednesday evening, Nov. 7th, the Statehouse Courtroom of the Supreme Court of Indiana will be the site of the final round of argument in this year's Honorable Robert H. Staton Intramural Moot Court Competition, conducted by Indiana University Robert H. McKinney School of Law's Moot Court Society. There is an outstanding panel of judges! The public is invited. The ILB has received this communication:

Good afternoon!

On behalf of the Indiana University Robert H. McKinney School of Law's Moot Court Society, I would like to cordially invite you to attend the Final Round arguments for this year's Honorable Robert H. Staton Intramural Moot Court Competition. This argument will take place on Wednesday, November 7, 2012 at 8:00pm at the Indiana Supreme Court. While the student-advocates are yet to be determined (their Semi-Final arguments are tomorrow), I am proud to inform you that we do have an outstanding panel for the Final Round argument. Sitting on the final panel will be three McKinney School graduates: Justice Mark Massa, Justice Steven David, and Judge Jane Magnus Stinson, as well as former Justice (and now Professor) Frank Sullivan, and Justice Loretta Rush. We are very excited to have these distinguished individuals assisting with this year's competition and look forward to their participation in the Final Round.

I would also like to extend my thanks and gratitude to the Indiana legal community and those who have helped with this year's competition. Without your help and participation, this competition would not have been possible.

Sincerely,

Kevin Beltz
Assistant Chief Justice, Staton Intramural Competition
Indiana University Robert H. McKinney School of Law

Ind. Courts - Indianapolis Tea Party takes to air with anti-Justice David ad

The Indianapolis Tea Party is recommending that voters be informed this year on the retention vote of Justice Steven David. Rick Barr, spokesperson for the Indianapolis Tea Party, said, Many folks come to the voting booth prepared to vote on their local, state, and federal candidates but forget about retention votes of Appellate Court judges and Supreme Court justices. * * *

On May 12, 2011, the Indiana Supreme Court ruled in Barnes v. Indiana which overturned the common law provision known as the ‘Castle Doctrine’. Justice David wrote the majority opinion. Of particular interest to every Hoosier is the unprecedented pronouncement by Justice David that "We [i.e. the Indiana Supreme Court] hold that there is no right to reasonably resist unlawful entry by police officers" into your homes. With this ruling, the ‘Castle Doctrine’ was rejected by Justice David and a majority of the court. The Castle Doctrine was a common law right enjoyed by subjects of the English Crown and citizens of the United States since colonial times and held that the right to defend your home from any unlawful entry by civil authority or private person was protected.

There was a large outcry on this May 2011 ruling from Hoosiers, state legislators, and the Indiana State Attorney General, so that on June 27, 2011, Indiana Attorney General Greg Zoeller filed a legal brief, asking the Indiana Supreme Court to reconsider. The Indiana Supreme Court re-heard Barnes v. Indiana on September 20, 2011, and Justice David along with 3 other Justices reaffirmed the earlier ruling. Justice Robert Rucker was the lone justice to dissent both times the case was heard. (Justice Robert Rucker is also up for retention this November.)

Barr said, “There has been a fundamental shift on the Indiana Supreme Court bench. This decision has established a new legal precedent which is antithetical to hundreds of years of Western jurisprudence. This ruling is dangerous and affects each and every Hoosier. Hoosiers hold the key to the political fate of Justice Steven David. The key is on the general election retention vote of Justice Steven David.”

The Indianapolis Tea Party promotes education and encourages each citizen to understand the ruling and its’ implications before they cast a vote this November 6th. Hoosiers will ultimately decide whether Justice Steven David stays or goes.

ILB: Another view on the Barnes decision and its aftermath is given in IU McKinney law professor Joel Schumm's opinion piece, first posted in the ILB on Oct. 26th. It also appeared yesterday as a "My View"item in the Indianapolis Star. In pertinent part, Schumm wrote:

Because judges make hundreds of decisions each year on a variety of difficult and controversial issues, sometimes a decision may cause a stir. Like some others, I took issue with parts of the Barnes decision written more than a year ago by Justice David. I raised those concerns in a friend‐of‐the‐court brief filed on behalf of a group of legislators. In response to that and other briefs, the Court issued an opinion that clarified the ruling, which help pave the way for the General Assembly to make modest changes to Indiana’s self‐defense statute after a great deal of discussion and debate. Whatever one’s opinion of the Barnes decision, that series of events demonstrates how each branch of government can appropriately exercise its role in resolving important issues.

Stage Collapse - "Lawmakers: Stage rules need more time"

INDIANAPOLIS – A commission drafting permanent rules intended to prevent a repeat of last year’s deadly Indiana State Fair stage collapse would have two more years to implement those regulations under a proposal endorsed Tuesday by a state legislative panel.

Members of the Outdoor Stage Equipment Safety Committee said the additional time is needed to allow Indiana to fully assess its safety needs for temporary outdoor stage equipment at events that range in size from small local fairs to big festivals with multiple stages.

State lawmakers imposed emergency rules for temporary outdoor stage equipment this year in the wake of the August 2011 stage rigging collapse that killed seven people and injured 60 others at the State Fair before a scheduled concert by country duo Sugarland.

The law authorizing those emergency rules – Indiana’s first for outdoor stage equipment – calls for them to expire on Jan. 1, 2014, after permanent rules are in place.

But the draft legislation endorsed Tuesday by the legislative panel would give Indiana’s Fire Prevention and Building Commission until 2016 to adopt the permanent rules.

South Bend attorney Andre Gammage is the Democratic candidate for probate judge in St. Joseph County. Gammage had the endorsement of the South Bend Tribune until the newspaper learned that he had accumulated 153 parking tickets since 2008. Gammage took care of the unpaid tickets after he decided to run for judge, but The Tribune withdrew its endorsement of his candidacy upon learning of his disregard for paying his parking tickets until he became a candidate. Others are calling on him to withdraw as a candidate.

Ind. Gov't. - "More delays, cost increases at Edwardsport"

John Russell has just posted this entry at the Indianapolis Star'sStar Watch blog. Some quotes:

Chalk up more technical problems, delays and another big price increase at Duke Energy’s troubled Edwardsport power plant, already one of the most expensive projects in Indiana history.

The utility said this morning it has uncovered numerous technical problems that will cost another $174 million to fix.

That will push the total price tag to $3.55 billion, including financing costs. Duke said it will swallow the additional construction costs, said it will record a pre-tax charge to earnings of $180 million in the third quarter.

The company also said it has pushed back the in-service date on the plant by about three months to May 29, 2013.

Excluding the financing charges of $400 million, Duke said the new estimated cost of the plant is now $3.154 billion. That’s about double the original estimate of $1.6 billion. * * *

The plant has garnered enormous criticism for numerous cost increases over the past four years. It has also been the center of an ethical storm for Duke Energy. Company officials and regulators were found to be discussing the cost overruns in secret meetings, resulting in several firings and resignations. The former chairman of the IURC, David Lott Hardy, was fired and is now awaiting trial on four felony counts of misusing his office.

Ind. Courts - "COA raises questions in case that sent 12-year-old to prison for 25 years"

Here is Robert King's Indianapolis Star story on the Gingerich oral argument yesterday. (For ILB background, start here.) Some quotes from the long, front-page story:

The future of a boy believed to be the youngest Hoosier ever sentenced to prison as an adult rests now in the hands of three judges who today raised pointed questions about whether his case was handled properly.

The Indiana Court of Appeals panel heard 40 minutes of arguments in the case of Paul Henry Gingerich, a 14-year-old who’s been imprisoned the last 2 1/2 years after he pleaded guilty, at age 12, to conspiracy commit murder in the 2010 killing of his friend’s stepfather in Kosciusko County. A decision could take several weeks.

The judges’ questions seemed to focus in on whether it was proper that Gingerich’s case was moved out of juvenile court, whether his attorneys had enough time to argue that it should stay and, given all that, his eventual guilty plea wasn’t valid. * * *

His attorney, Monica Foster, argued that Gingerich -- an 80-pound sixth grader at the time of the crime -- didn’t understand the proceedings well enough for the case to be moved to adult court. She also said the four days his attorneys had to prepare for the waiver-to-adult-court hearing was inadequate -- that defense attorneys in Marion County, by contrast, typically get three months. She said a psychologist who examined the boy was concerned about his competence to stand trial in adult court and that brain research on the development of youth would have aided his case.

The three appellate judges -- James S. Kirsch, John G. Baker and Elaine B. Brown -- quizzed Foster on some matters of law, but their most poignant question was about the risks Gingerich faces if they rule in his favor and give him a legal do-over. In other words, if the process is repeated and he’s again moved to adult court -- at age 15 by the time a new case would be heard -- who’s to say he might not get a stiffer punishment?

“There’s a concern you might win the battle,” Judge Baker said from the bench, “but lose the war.”

Foster said she has confidence in the system, despite the failure of the previous proceedings, and she thinks Gingerich would be allowed to remain in the juvenile system.

The judges seemed to reserve their greatest skepticism for Deputy Attorney General Angela Sanchez, who argued the position of the state and its prosecutors. Sanchez tried to focus the issue on Gingerich’s guilty plea, which she said nullifies any appeals he might make. Sanchez said Gingerich’s attorneys and his parents signed off on a deal that likely spared him a stiffer sentence on a murder charge, rather than the conspiracy count.

But the judges kept asking her why that plea should be considered if there was reason to believe then 12-year-old Gingerich didn’t know what he was signing.

Judge Brown took note of the short window Gingerich’s attorneys had to make the case he didn’t belong in adult court, asking “Why the rush to judgment by the juvenile court?"

Judge Kirsch noted an Indiana Supreme Court precedent that says the waiver hearings should be more than “perfunctory” and then asked if a week was enough time for Gingerich’s attorneys to prepare for a hearing with far reach effects.

“How can that be consistent with due process?” Judge Kirsch asked.

Sanchez struggled to respond to such queries, coming back repeatedly to Gingerich’s guilty plea, saying the court had no reason to suspect the boy was incompetent to stand as an adult and under no obligation to assume otherwise. But, at one point, she acknowledged that the Kosciusko court’s decision to allow such a short prep time to Gingerich’s attorneys “is not best practices” for courts around the state to emulate.

After the hearing, Sanchez had no comment on the courtroom debate. Her boss, Attorney General Greg Zoeller, issued a statement that said, in part: “The trial court and county prosecutor followed Indiana law, and the defendant's rights were not violated. Balancing respect for well-established legal precedent and the safety of the public, we ask the Court of Appeals to leave the guilty plea and corresponding sentence intact.” * * *

If Gingerich’s appeal is successful, his case would start over. A juvenile court would have to decide whether to keep his case or send it to the Circuit Court. Stay in the juvenile system and he’d likely stay in prison no later than age 21, quite possibly sooner. If the case is again sent to the Circuit Court, this time as an older teen, he could be sentenced again to a lengthy adult sentence.

While Foster thinks that’s the best course, his parents acknowledged it’s a risk.

His father said he would trust Foster, who took the case on a voluntary basis and brought it from nowhere to the Court of Appeals.

His mother, Nicole Gingerich, was less certain.

“I’d need to think about it,” she said.

Stacey Page Online, "Kosciusko County's Only Digital Daily Newspaper," has a long story dated Oct. 30, reported by Deb Patterson. Some quotes:

Was Paul Henry Gingerich competent in April 2010? Was the court lied to by a
court official in the waiver hearing?

Those two questions are among those now being considered by State Appeals Court Justices John G. Baker, Elaine B. Brown and James S. Kirsch.

Oral arguments as to whether Gingerich’s conviction in Kosciusko County Circuit Court should or should not be upheld, and whether the case should be remanded back to juvenile court for the process to proceed again, was heard this morning in Indianapolis. The hearing was available via a live webcast. * * *

Justice Brown did ask if the defense had an opportunity to cross examine the
witness. Foster stated that while they did, they had only five days to prepare and they were overwhelmed, “I would have been,” Justice Brown responded.

Foster pointed out there are 17 locked and secure facilities in the state that will accept a juvenile accused of homicide. When Gingerich was received by the Indiana Department of Corrections, they stated they could not send him to an adult facility, instead sent him to a juvenile facility, “where he is receiving rehabilitation and doing terrifically.”

Foster’s final comment was that the case was “mistake ridden from the beginning.”

In closing, Foster stated repeatedly the defense sought continuances prior to the waiver hearing and at the waiver hearing, but were denied. When the case went to adult court, a motion to dismiss was filed and denied. When new counsel stepped in, the issue of due process was raised stating the adult court had no jurisdiction. That matter was also dismissed.

An interlocutory appeal was denied. She stated this is why the parents accepted the plea agreement, however, she added the fact all parties involved signed the agreement was an indication there was a problem with the case.

Foster claimed the IDOC was watching the case and it was out of the graces of
their hearts not to put him in an adult facility, but place him at a juvenile facility — Pendleton.

When Sanchez had her turn to represent the state’s side, it almost appeared as if the justices reprimanded her in pursuing the fact Gingerich waived his right to an appeal through the plea agreement.

Sanchez stated there was no reason for the courts to believe Gingerich was ever incompetent and when questioned by Justice Brown if 90 days is standard before a
waiver hearing and if there was a rush judgment made, Sanchez stated it varies
from case to case and county to county. But, she cited the state statute that says
if a defendant over the age of 10 commits murder it is presumed juvenile court is inadequate and the individual should be waived to adult court.

Sanchez added there is no record of transcript from the hearing or probable cause represented at the waiver hearing. It was noted that the judge was looking at the
presumptive waiver before him and the safety and welfare of the community.

She argued the judge used caution when accepting the plea agreement, which was signed by his two attorneys and both parents, by making sure the boy did understand proceedings and the plea agreement.

Sanchez argued this matter should have gone through the post conviction process and is confident the ruling is iron clad based on the best evidence. She also noted Babcock provided information at the hearing “to the best of his knowledge” and said despite Foster’s insistence there are facilities that would take Gingerich, Foster has not shown where that facility is and added, “We have not learned if he would meet all the admission requirements.”

Justice Brown asked Sanchez if the judge failed to order competency findings which Sanchez replied, “If the judge had reason to believe he was incompetent it is his duty to order. There was no evidence before the court, there was a lot of evidence he was competent.”

Finance Authority attorney Andrew Kienle said the agency hopes to get a new deal done by the end of the year. He said the agency expects an amended contract will satisfy the court's concerns.

However, the court's reversal of regulatory approval provided an opening for opponents of the deal who contend it will leave utility customers on the hook for costly synthetic gas at a time when natural gas prices have fallen on the open market. An amended deal would need fresh approval from the Indiana Utility Regulatory Commission, and opponents might have time to ask the Legislature to revisit the agreement.

"There should be no doubt that the Indiana Legislature now has the opportunity to reshape this project in such a way that is balanced and fair," said Mike Roeder, a vice president at gas utility Vectren, which contends the deal will cost Indiana residential customers and small businesses more than $1 billion during its first eight years. Roeder said the company was reviewing the ruling. * * *

The three-member appeals panel, in the ruling written by Justice Patricia Riley, appeared satisfied with Indiana Gasification's promise that the deal will deliver savings to utility customers. It found the contract inappropriately defined companies that transport natural gas for industrial users as retail customers when that wasn't legislators' intent in a 2009 law allowing the deal.

The appeals panel's chief justice, Margret Robb, concurred on most of the majority opinion but issued a dissent saying the court should have struck down only the portion of the contract dealing with the industrial transport companies and let the rest of the contract stand.

Kerwin Olson, executive director of the consumer advocacy group Citizens Action Coalition, agreed with Roeder that the General Assembly should reconsider the law that allowed the deal because it "throws Indiana consumers to the wolves."

"This law needs to go and here's hoping that the Legislature has the courage to do the right thing for their constituents and get this abomination of the law off the books in the upcoming session," Olson said.

An Indiana appellate court slammed the brakes Tuesday on the Rockport coal-gasification plant, overturning state utility regulators’ approval of a deal that developers say is critical to the project’s construction.

The court threw out the 30-year contract that Gov. Mitch Daniels’ Indiana Finance Authority had negotiated to purchase the plant’s product at a fixed rate and then resell it by billing the state’s residential and commercial gas users.

In a 2-1 ruling, the Indiana Court of Appeals said the way the contract treats some industrial gas users conflicts with state law.

Both the Daniels administration and Leucadia National Corp., the plant’s developers, said they believe a quick amendment to the contract addressing the court’s concerns could be finalized and sent to the Indiana Utility Regulatory Commission for approval.

“We are very pleased with 95 percent of the court opinion, and we see a clear path to resolving the technical issue that the court identified,” said Mark Lubbers, the former Daniels aide who is Leucadia’s project director. * * *

Kerwin Olson, the executive director of the environmental group Citizens Action Coalition, called the court’s ruling “a victory in the sense we live to fight another day.”

He said he disagrees with portions of the ruling, including the court’s finding that ratepayers are guaranteed savings over the 30-year life of the deal. He said he hopes state lawmakers will make their intent to guarantee “actual and verifiable savings” clear in 2013.

“Better yet, the General Assembly should repeal the entire law to ensure that a fiasco like this never happens again,” Olson said.

“This law needs to go and here’s hoping that the legislature has the courage to do the right thing for their constituents and get this abomination of the law off the books in the upcoming session.”

The court ruled Tuesday that the deal should not include certain industrial customers, so the Finance Authority and Indiana Gasification must amend the contract and seek new approval by the Indiana Utility Regulatory Commission.

Finance Authority attorney Andrew Kienle says it hopes to get a new deal done by the end of the year.

ILB: Of course, the General Assembly convenes in January... Some legislators have been looking for a way to undo what many see as a "done deal," compelling Indiana consumers to buy gas at what many believe will be more than market rates over the next 30 years. See this Oct. 7th ILB entry, which asks: "Is there anything the next Governor or the General Assembly could do, if they wanted to, to stop or alter this project, or are the Indiana ratepayers already locked in? "

An Indiana appeals court today reversed the Indiana Utility Regulatory Commission’s approval of a controversial deal under which Indiana natural gas customers would be required to pay for energy from a planned coal-gas plant in Rockport.

In a 2-1 decision, the Indiana Court of Appeals ruled that the Indiana Finance Authority’s contract with the plant’s developer, Indiana Gasification, went beyond what state lawmakers had authorized.

Specifically, the court ruled that the contract’s inclusion of industrial transportation customers in the definition of “retail end use customer” violated the authorizing legislation passed by the General Assembly in 2009.

[Updated at 7:08 PM]"Court smacks down gasification plant deal" is the headline to this story now posted on the NWI Times site that goes further than the other stories. Some quotes:

"We live to fight another day," said Kerwin Olson, of the Citizens Action Coalition, one of the groups fighting the deal.

The court's ruling gives the Indiana General Assembly another chance to clarify its intent in passing the 2009 law that laid the groundwork for the Indiana Gasification deal, Olson said.

"We believe the General Assembly thought ratepayers would be paid guaranteed savings over 30 years and the court's order disagrees with that," Olson said. * * *

Indiana Gasification pointed out on Tuesday the court affirmed some key parts of its broader deal with the IFA, while acknowledging large industrial transport customers like ArcelorMittal will be excluded from the Rockport deal.

“We are very pleased with 95 percent of the Court opinion, and we see a clear path to resolving the technical issue that the court identified,” said Indiana Gasification Project Manager Mark Lubbers.

In particular, Indiana Gasification cited the court's nuanced argument on the "guarantee" of consumer savings as a key part of the ruling that reinforces the company's position.

Indiana Gasification and the IFA now have two routes they can pursue if they want to preserve their deal.

They could appeal Tuesday's ruling directly to the Indiana Supreme Court, according to IURC spokeswoman Danielle McGrath. Or they could submit a revised contract to the IURC that accords with the court's ruling. At that point, the IURC would have to determine how best to proceed, McGrath said.

If Indiana Gasification and the IFA take the first option and the Supreme Court denies the appeal, they could still file a revised contract with the IURC in the hope of winning its approval, McGrath said.

The Indiana Court of Appeals posed some tough questions of attorneys during oral arguments Tuesday about whether 14-year-old Paul Henry Gingerich ever should have seen the inside of an adult courtroom.

His attorneys are asking the court to overturn an April 2010 decision by Kosciusko Superior Judge Duane Huffer to waive Gingerich into adult court to face a murder charge.

Gingerich attorney Monica Foster pointed out that if she loses the appeal, she will have 30 days to appeal the finding. In comparison, the boy's trial attorneys had just five business days to prepare for the waiver hearing.

"I don't understand the rush to judgment," she said, noting she is confident Gingerich would have been found incompetent to be waived if a proper hearing had been held.

Ind. Courts - "Judge in case of toddler's death bows out"

The judge in a controversial LaGrange County child abuse case has recused himself in the wake of what he calls "post-sentencing publicity and of possible intimidating behavior by members of the public."

The Tribune published a three-part series starting Oct. 12 about what happened since 16-month-old Alissa Guernsey was beaten to death while in the care of her mother's cousin, Christy Shaffer, in March 2009. After the toddler died, Shaffer pleaded guilty to one felony count of neglect of a dependent and was sentenced in May 2011 to 10 years in prison, with six years suspended.

But Circuit Court Judge J. Scott VanDerbeck modified Shaffer's sentence in August 2011 -- after she had served only 77 days of the sentence.

The recent Tribune series quoted the judge in 2009 hearing transcripts to determine what would happen to the other children in Shaffer's household after Alissa's death; VanDerbeck spoke of knowing Shaffer's father, a local bank vice president who he knew in the small community. "I know he's got a good heart," the judge said during that hearing.

Meanwhile, an online protest of what some have regarded as leniency has continued to grow exponentially over the last month, bombarding VanDerbeck, LaGrange Prosecutor Jeff Wible and others with letters and calls for the case to be reopened. * * *

Although the Facebook movement spearheading much of the growing letter-writing campaign -- BabyAlissaCries4Justice.org -- pushes for the case to be reopened and Shaffer to be charged with murder or a greater crime in the baby's death, legal authorities are consistent in saying that Constitutional double jeopardy rules would prevent new charges.

But another judge could review VanDerbeck's sentence and his decision to modify Shaffer's prison time.

BAC did not acquire the organization, trade, or business, or substantially all the assets of the Subsidiaries, nor did the Subsidiaries transfer all or a portion of their trade or business to BAC. Thus, BAC is not a successor employer to the Subsidiaries pursuant to either Indiana Code section 22-4-10-6(a) or Indiana Code section 22-4-11.5-7, and the Subsidiaries’ unemployment experience accounts should not have been combined with BAC’s account, nor should the contribution rates of BAC and the Subsidiaries have been recalculated, other than the recalculation of BAC’s rate due to its merger with ACS. We therefore reverse and remand to the Department to adjust their respective experience accounts accordingly, and to refund any over-payment by BAC and/or the Subsidiaries. Reversed and remanded.

In Indiana Gas Company, Inc. and Southern Indiana Gas and Electric Company, et al. v. Indiana Finance Authority (IF) and Indiana Gasification, LLC (IG), a 2-1, 42-page opinion, the panel reverses the Utility Regulatory Commissions' order approving a Substitute Natural Gas Purchase and Sale Agreement (Contract) between the IFA and IG. The opinion defines the issues as: (1) Whether the Commission erred in approving the Contract when the Contract defined “retail end use customer” in a manner contrary to the statutory definition of the same term. (2) Whether the Commission exceeded its jurisdiction when it approved the Contract. (3) Whether the Utilities and the Industrial Group have standing to appeal the Commission’s approval of the Contract. Judge Riley concludes:

Based on the foregoing, we conclude that (1) the Utilities and the Industrial Group’s claims are justiciable; (2) the Commission did not exceed its jurisdiction when it approved the Contract; and (3) the Contract’s definition of retail end use customer inappropriately included industrial transportation customers, even though the Legislature did not intend industrial transportation customers to be subject to the SNG Act as retail end use customers. We reverse the Commission’s order approving the Contract. Reversed.

DARDEN, S. J. concurs
ROBB, C. J. concurs in part and dissents in part with separate opinion: I concur in all but the final disposition of the well-considered opinion of the majority in this case. The majority reverses the Commission’s regulatory approval of the Contract because the definition of “retail end use customer” in the Contract deviates from the statutory definition. I do not believe reversal of the Commission’s approval of the Contract in its entirety is necessary. * * *

I would hold, with the exclusion of that part of the Contract definition of retail end use customers which applies to transportation customers, that the Contract was properly approved by the Commission.

For more than forty years, brothers Nathaniel Kappel (“Nathaniel”) and William Kappel (“William”) were amicable partners in a farming operation, with each holding an insurance policy on the life of the other. Upon Nathaniel’s death in 2004, the attorney for the Estate of Nathaniel Kappel (“the Estate”) filed in the Hendricks Superior Court, probate division, a petition to marshal assets, seeking recovery of $750,000 insurance proceeds paid to William. William and his son, Mark Kappel (“Mark”), filed claims against the Estate, for $350,000 and $299,000, respectively, and William and his wife, Judith Kappel (“Judith”), filed a Complaint for Contribution as to a mortgage and taxes on the brothers’ farmland. The Estate counterclaimed, suing William and Judith for conversion. The Estate also sought a partnership accounting. The claims were consolidated and, at the conclusion of a bench trial, the probate court denied the Estate recovery of the insurance proceeds, directed William and Mark to withdraw their claims against the Estate, and denied the complaint for contribution. The Estate now appeals. We affirm. * * *

The probate court judgment denying the Estate recovery of insurance proceeds is not clearly erroneous. Nor is the refusal of the probate court to order the Estate to pay attorney’s fees erroneous. Affirmed.

Appellant-Defendants, Mark Carter and John E. Carter, co-personal representatives of the Estate of John O. Carter, M.D., deceased (Dr. Carter), appeal the verdict in the amount of $550,0000 in favor of Appellee-Plaintiff, Loretta Robinson, Individually and as Administratix of the Estate of John E. Robinson, Deceased (Robinson), following Robinson’s Complaint for medical malpractice. We affirm. * * *

Based on the foregoing, we hold that (1) the trial court did not abuse its discretion when it allowed Robinson’s pathologist to testify as an expert witness pursuant to Indiana Evidence Rule 702; (2) the trial court appropriately excluded the testimony of Dr. Carter’s expert witness because he was not timely disclosed to Robinson; and (3) the trial court properly instructed the jury ["hindsight" issue]. With respect to Robinson’s cross-appeal, we deny his request for appellate attorney fees pursuant to Indiana Appellate Rule 66(E).

Ind. Decisions - Supreme Court decides one today, a reversal

Lisa Kane appeals her conviction for receiving stolen property, arguing that the trial court improperly instructed the jury on the mental state required to convict her. We agree, reverse her conviction, and remand her case for retrial. * * *

[Kane Has Not Waived Her Claim of Instructional Error] As a threshold matter, the State contends that Kane’s claim of instructional error is waived because she did not raise the particular grounds for her objection at trial or on appeal. We disagree. * * *

[Jury Instruction No. 12 Was an Incorrect Statement of the Law] In prior cases, we have weighed jury instructions that were unclear as to the relevant mental state and found them wanting. See Small, 531 N.E.2d at 499. Final Instruction No. 12 does not include a mental state at all; rather, it seems to impose strict liability on Kane for the unlawful acts of Sam, whether she knew about them or not. That is not the law in Indiana, and so we hold that the trial court erred by giving the jury Final Instruction No. 12. * * *

[The Error Was Not Harmless] We agree with Judge Barnes that this “evidence of Kane’s knowledge that she was helping Sam ‘fence’ stolen property is far from overwhelming.” * * * Thus, we cannot say the verdict would have been the same if the jury had been properly instructed as to the knowledge requirement of the offense, and we find the error was not harmless.

Conclusion. Accordingly, we reverse Kane’s conviction and remand this case for retrial.

Ind. Decisions - "Indiana doctor's suit may affect mergers"

Tony Cook reports today in the business section of the Indianapolis Star in a long story that begins:

In a decision with broad implications for health-care mergers in Indiana, a Marion County judge ordered a physician's group to pay what could amount to more than $1 million to an Indianapolis neurosurgeon who opposed the practice's merger with another physician group.

The ruling, in favor of longtime brain and spine surgeon David C. Hall, could make mergers more difficult at a time when they are becoming increasingly common to meet the demands of the federal healthcare overhaul.

Hall sued his former practice, Indianapolis Neurosurgical Group, after the firm fired him in 2009. The falling out had to do with a planned partnership between the group and University Neurological Associates.

Most of the group's shareholders approved the consolidation, but Hall opposed it because of concerns about a non-compete agreement and other factors. A month before the merger took effect, he submitted his resignation, but the group fired him instead, saying he violated a provision of his contract that required him to give one-year notice before resigning.

In an order issued Friday, Marion Superior Court Judge Heather Welch ruled that Hall was entitled to dissenter's rights, which allow shareholders to resign without penalty to receive fair value for their shares. Indianapolis Neurosurgical Group failed to notify Hall of those rights, according to Welch's order.

As a result, he is owed severance, fair value for his shares, attorney's fees and interest, she ruled. A jury trial to determine damages has been set for Feb. 26, said Hall's attorney, Robert MacGill of the Indianapolis law firm of Barnes & Thornburg.

The case represents the first time an Indiana court has specifically addressed the question of whether dissenter's rights apply to professional medical corporations in Indiana, according to the order.

The answer to that question could mean millions of dollars to physicians who oppose mergers supported by the rest of their partners, said Kent Smith, an Indianapolis attorney with Hall, Render, Killian, Heath & Lyman, a law firm specializing in health-care law.

Separate lawsuits filed by the ACLU of Indiana ended last week with satisfactory resolution in each case. One, a suit targeting Southwest Allen County Schools, argued that the district endorsed religious beliefs by allowing a youth pastor to speak with students in the school cafeteria at lunchtime.

The second alleged that attorney David Kolhoff’s free speech rights were violated when the Allen County Public Library refused to allow him to set up a display on the plaza outside the downtown library.

The editorial concludes:

In the end, the biggest winner in both cases is the public. Reminders of the precious rights we hold as Americans should always be supported and encouraged.

Monica Foster, who represents Gingerich, said her client, now 14, was too young to be deemed competent to stand trial in adult court. She also maintains that Gingerich's counsel at the time were given too little time -- four days -- to prepare arguments for the hearing that moved the case out of the juvenile courts. His youth made it impossible for him to take an adequate role in his own defense, Foster argues in court documents, and should nullify his guilty plea.

In court papers Indiana Attorney General Greg Zoeller, representing the prosecutors, argues that the juvenile court in Kosciusko County was in a good position to evaluate Gingerich's competence to stand trial in what it calls a "premeditated and cold-blooded" murder. He argues there's no evidence to show that more time to prepare for the competency hearing would have changed the outcome.

The state also says Gingerich waived his right to appeal as part of a plea agreement that reduced the charge from murder to conspiracy to commit murder. The state notes, too, that Gingerich's parents and attorneys signed off on the plea deal. * * *

Foster, who took Gingerich's case on a voluntary basis, said she wants the appeals court to send the case back to its beginning, with a new hearing on the issue of whether Gingerich in 2010 was competent to stand trial as an adult. She says the case should have been kept in the juvenile court. If that can happen now, she said, Gingerich has a chance to be a productive member of society. If he must serve his sentence, including the final few years in adult prison, she fears he might be lost for good. "I really think what happens in this case," she said, "will dictate what happens for the rest of his life."

[Updated at 10:10 AM] Here is a long story from Charles Wilson of the AP.

Ind. Courts - "Trial courts’ caseload slips for a 3rd year"

Niki Kelly of the Fort Wayne Journal Gazettereports today on yesterday's press conference (photo here) held by Chief Justice Dickson on the just released 2011 caseload statistics. Some quotes:

INDIANAPOLIS – The number of new cases filed in Indiana’s trial court system dropped for the third year in a row, according to data released Monday.

About 1.68 million cases were filed in 2011, compared with 1.86 million in 2010. Overall, new case filings are down 11 percent since 2002 with an even sharper decline of 16 percent since a peak of 2 million new cases in 2008. * * *

Dickson said despite a declining caseload overall in many areas of the state – including in the appellate courts – he will be asking legislators for additional court funding in 2013.

He said the numbers don’t fully explain the quality of justice needed, citing examples such as the amount of time and money needed to serve those who don’t speak English or technological improvements needed to make courts more efficient.

State Court Administration Executive Director Lilia Judson said the portion of the annual report that jumped out at her was the large burden counties are bearing related to the judicial system, especially for adult probation services and public defender services.

Kelly's story also focuses on the Allen County statistics:

Allen County case filings continue to rise, though. In 2011, almost 98,600 new cases were filed – up from 91,000 in 2009.

On top of new cases, the system is also still dealing with cases pending from prior years. For instance, in 2011, Allen County judges and magistrates disposed of more than 100,000 cases – some of which might be several years old.

Jury trials are down statewide and in Allen County.

There were 1,298 jury trials – both civil and criminal – in the state’s 92 counties in 2011. Eighty-eight were in Allen County – down from 114 in 2009.

Filings in Indiana's courts were down for the third straight year in 2011, but judges and court staff in Lake and Porter counties are still overburdened, according to a new report released Monday. * * *

Infractions, typically traffic violations, made up 43 percent of new filings, followed by criminal (17 percent), small claims (15 percent) and civil (13 percent). Ordinance violations, juvenile cases and adoptions made up the remaining 12 percent.

Lake County courts, including the 10 city and town courts, saw 188,199 cases filed last year, of which 48 percent were infractions. Porter County had 37,475 new cases, half of which were infractions. * * *

Dickson said he plans to ask the General Assembly next year to boost funding for the courts to help relieve the workload burdens on many judges.

According to the court's weighted caseload measurement system, Porter County courts are operating at 133 percent of workload capacity, while courts in Lake County are at 109 percent.

The average Indiana court is operating at 127 percent of capacity. The report estimates that 122 more judges are needed to meet the workload demand.

INDIANAPOLIS — The numbers of criminal and civil cases filed in Indiana are on a downward trend in a wide range of categories, from murder charges to mortgage foreclosures, according to a newly released report that also shows an upward trend in the money that counties are spending to keep offenders out of prison.

The 2011 Indiana Judicial Service Report, released Monday, shows the overall number of criminal and civil cases being handled by judges and court personnel down to about where it was a decade ago.

The 1.6 million cases filed in 2011 marks the second lowest number of cases filed in Indiana courts since 2002, and shows a significant drop from the nearly 1.9 million cases filed in 2008. But that 1.6 million number – which covers everything from felony criminal prosecutions to divorce cases – also shows the frequency in which Indiana residents come into contact with the state’s court system, said Indiana Supreme Court Chief Justice Brent Dickson. * * *

Dickson credited a variety of factors for the overall drop in criminal and civil cases since 2008, when nearly 2 million cases were filed. Among them, he said, was the increasing cost of civil litigation and attorney fees; the increase in dispute-resolution programs aimed at keeping people out of the courts; and an increase in diversion programs that allow traffic violators and some low-level offenders to avoid criminal charges.

“Strenuous efforts in alternative dispute resolution and mediation are, we think, reaping effects where people are taking responsibilities for settling their own disputes and maintaining control of their lives a little bit better than happens when a matter goes into litigation,” Dickson said.

One area that’s seen a major increase, according to the report: the cost of probation services borne by counties. The cost of providing probation services, which include drug and substance abuse treatment programs, community-based supervision of offenders, and other efforts aimed at keeping offenders out of prison, was up to nearly $90 million in 2011 – an increase of more than $20 million since 2007.

Brent Dickson says the state needs to hire more judges and adopt newer technology to help reduce the current judges' caseloads. * * *

Judicial officials set a baseline amount of time they expect each case to take, based on its severity. Murder cases take longer than theft cases, for instance. Using those numbers, the state establishes a baseline amount of work it expects each judge to do.

Supreme Court Chief Justice Brent Dickson says many judges do more than that amount of work, meaning more need to be hired to take some of the pressure off, but Dickson says more judges is not the only solution.

“Other counties try to reconfigure the way they work, share work among themselves and every county has the ability to come up with a system that works best for them. And many of them will do that,” he says. * * *

Dickson says he will also ask the legislature for more funding to use technology to help reduce caseloads and save taxpayer money.

Ind. Decisions - Still more on "Driving For Miles With Blinker On is Not a Crime"

Updating this ILB entry from earlier today, an “attorney who works with law enforcement” has sent this note:

I just wanted to drop you a line regarding the decision handed down in State v. Killebrew, which has received significant attention on your blog and through other media outlets. The decision rested on the normal turn signal statutes, IC 9-21-8-25 and 9-21-8-26, and the court held that it is not a violation of those statutes to drive for an extended distance with a turn signal on without actually making a turn.

However, I think there is another statute that the court seems to have missed that specifically prohibits driving with a flashing light on your vehicle. Indiana Code 9-21-7-11 states that a vehicle “may not display flashing lights” unless there is a statutory exception under subsection (b) of section 11. One of the exceptions where a person can display a flashing light is “as a means of indicating a right or left turn.” The logical inference is that if a person continually drives his vehicle with its turn signal on, but is not using the signal to indicate his intention to turn, then he is driving a vehicle while displaying a flashing light in violation of IC 9-21-7-11. This would justify a traffic stop.

A signal of intention to turn right or left shall be given continuously during not less than the last two hundred (200) feet traveled by a vehicle before turning or changing lanes. A vehicle traveling in a speed zone of at least fifty (50) miles per hour shall give a signal continuously for not less than the last three hundred (300) feet traveled by the vehicle before turning or changing lanes.As added by P.L.2-1991, SEC.9.

On the other hand, Indiana Code chapter 9-21-7 deals with "Vehicle Equipment." The chapter is a combination of provisions about equipment and provisions about their operation. Section 11 provides:

(a) Except as provided in subsection (b), a vehicle may not display flashing lights.
(b) Flashing lights may be displayed on a vehicle as follows:
(1) On an authorized emergency vehicle.
(2) On a school bus.
(3) On snow-removal equipment.
(4) As a means of indicating a right or left turn.
(5) As a means of indicating the presence of a vehicular traffic hazard requiring unusual care in approaching, overtaking, or passing.
(6) On a vehicle used in a funeral procession.As added by P.L.2-1991, SEC.9. Amended by P.L.80-2012, SEC.4.

IC 9-21-8-25, the law cited in the Killebrew opinion, at least specifies how many feet before the actual turn the signal is to be given.

IC 9-21-7-11 contains no such parameters. Sec. 11 prohibits a display of flashing lights with specified exceptions including: (b)(4) As a means of indicating a right or left turn. Nothing more. The writer says to have your turn signal on "continuously" violates the statute. But what is "continuously"? The provision seems to me to be too vague to use in the way the writer urges; the court would have to add the parameters itself. Thoughts?

Ind. Decisions - Transfer list for week ending October 26, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

John W. Schoettmer, Karen Schoettmer v. Jolene C. Wright, and South Central Community Action Program, Inc. - This is a 2-1, July 13, 2012 opinion where the COA majority wrote: "It is undisputed that, as a designated community action agency, South Central is a political subdivision pursuant to the ITCA. See IC 34-13-3-22. The ITCA bars tort claims against a political subdivision unless notice of the claim is filed with the governing body of that political subdivision within 180 days after the loss occurs."

Ind. Courts - 2011 Judicial Service Report available [Updated]

From the Supreme Court news office:

Today at 1 p.m. in the State House Law Library on the 3rd floor, Chief Justice Dickson will discuss judicial branch caseload and operations. This press conference is to highlight the release of the massive (1,725 page) Judicial Service Report. You can find the full report online.

ILB: Perhaps the best way to get the "big picture" from the massive report is to look at the "Statistical Trends" section. For instance, the total number of cases filed has dropped from a high in 2008 of 2,001,731 to 1,680,412 in 2011.

Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)

This case involves a dispute between neighbors—Betty J. Angel (“Angel”) and Kent H. Powelson (“Kent”) and Marjorie A. Powelson (“Marjorie”) (collectively, “the Powelsons”)—regarding two pieces of property in Vanderburgh County: (1) an 80-acre parcel of land, which was owned by Kent’s grandmother, divided in 1964, and conveyed to the parties at different periods in time; and (2) a 20-foot wide strip of land that passes over a 60-acre tract of land (“the Roadway”) that serves as a roadway to access the divided parcels. Angel received a deed to 73 acres “more or less” of the 80-acre parcel and an easement to use the Roadway in 1964, and Kent received a deed to 7 acres “more or less” of the 80-acre parcel and an easement to use the Roadway in 1978.

The parties used the Roadway and appear to have lived without major problems on their respective parcels until Kent gave a cell phone company a public utility easement, allowing it permission to come onto and put a cell phone tower on Kent’s parcel. Forty-six years after Angel received the deed to her parcel, Angel sued Kent, claiming that the legal description of the property boundaries in her 1964 deed should be changed or reformed because Kent’s grandmother misinformed Angel that she was receiving 73 acres and claiming that she had established ownership to the Roadway through adverse possession. * * *

Angel argues that the trial court erred by granting part of the Powelsons’ motion for summary judgment. Specifically, Angel argues that: (a) the trial court erred by considering the Powelsons’ designated evidence; (b) the trial court erred by granting summary judgment to the Powelsons on Angel’s claim for reformation of a deed; and (c) the trial court erred by granting summary judgment to the Powelsons on Angel’s claim for adverse possession. * * *

Waiver notwithstanding, because the Powelsons’ designated evidence was specific enough to inform the trial court of the material upon which the Powelsons relied in support of their motion for summary judgment, it may be considered. * * *

[C]ourts in Indiana may reform written instruments only if: (1) there has been a mutual mistake; or (2) one party makes a mistake accompanied by fraud or inequitable conduct by the other party. * * *

Because the designated evidence supports the trial court’s conclusion that Angel’s claim for reformation of a deed is barred by laches, we affirm the trial court’s grant of summary judgment to the Powelsons on this claim. * * *

The doctrine of adverse possession is one that “entitles a person without title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent, notice, and duration.”

Here, we cannot say that the trial court erred by granting summary judgment to the Powelsons on Angel’s claim of adverse possession to the Roadway. The undisputed designated evidence reveals that both Angel and the Powelsons were granted an easement to use the Roadway and that they both have used it for ingress and egress purposes. Thus, the elements of control and intent have been negated. * * *

Jones contends that his multiple convictions for battery violate Indiana’s constitutional prohibition against double jeopardy. Specifically, he contends that he cannot be convicted for domestic battery as a Class D felony (Count I), domestic battery as a Class A misdemeanor (Count IV), and battery as a Class A misdemeanor (Count V) because “the evidence presented supports but a single offense of domestic battery.” * * *

Jones bases his claim on the “actual evidence test” enunciated by the Indiana Supreme Court in Richardson v. State, 717 N.E.2d 32 (Ind. 1999) and on the fact that Counts IV and V are each a lesser-included offense of Count I. * * *

Jones was convicted in violation of Article 1, section 14, of Class D felony domestic battery, Class A misdemeanor domestic battery, and Class A misdemeanor battery. The two Class A misdemeanor battery convictions have the less-severe penal consequences. Accordingly, we vacate both the convictions and sentence for the Class A misdemeanor domestic battery (Count IV) and for the Class A misdemeanor battery (Count V), and leave standing the conviction and sentence for Class D felony domestic battery (Count I). * * *

On the basis of double jeopardy, we reverse Jones’s convictions for Count IV, Class A misdemeanor domestic battery, and Count V, Class A misdemeanor battery, and we affirm Jones’s conviction and sentence for Count I, Class D felony domestic battery. In all other respects, we affirm the trial court’s decision. Therefore, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Courts - "Filming in state courtrooms gets its most prominent test in northwestern Illinois murder case"

From Clifford Ward, in a special to the Chicago Tribune, this long story today that begins:

When the murder trial of a man charged in a two-state killing spree begins this week, it will mark another progression in Illinois' experiment with cameras in the courtroom.

Opening arguments and testimony are scheduled to begin Monday in the trial of Nicholas Sheley, 33, accused in the 2008 beating death of Russell Reed, 93, of Sterling. Reed is one of eight people in Illinois and Missouri whom Sheley is accused of killing during a period of several days in 2008. He has already been convicted of one of the murders, that of a Galesburg man, and is serving a life sentence.

Sheley's trial at the Whiteside County Courthouse in Morrison in northwestern Illinois is expected to draw the most media attention of any trial since the state Supreme Court began its pilot program this year to place cameras in courtrooms.

Ind. Decisions - More on "Driving For Miles With Blinker On is Not a Crime"

An Indiana court's ruling about marijuana and turn signals could have broad implications about how police conduct traffic stops, and make some convictions easier to battle in court.

In March 2011, a Kokomo police officer pulled over a man for not turning left while his signal was blinking. After the officer discovered two bags of marijuana in the vehicle, the man, Rodney Killebrew II, was charged and later convicted of possession of marijuana.

On Oct. 19, though, the Indiana Court of Appeals threw out the conviction after determining Indiana law does not make it illegal to flash a turn signal without turning at an intersection.

Authorities and legal experts say the case will force officers to rethink why they conduct traffic stops. Prosecutors also expect suspects to use the ruling in court to try to prevent -- or reverse -- convictions.

"It's important that police officers understand what is and isn't a traffic violation," said Joel Schumm, a professor at Indiana University's Robert H. McKinney School of Law, "because if they pull someone over for something they think is a traffic violation and is not, evidence of drugs and guns and other things is not going to be able to be used against the defendant."

Indiana courts, before the Kokomo case, had never determined if using a turn signal without turning at an intersection was a traffic violation, judges in the ruling said.

The judges cited a 5th U.S. Circuit Court of Appeals decision that said police could not stop a man and search his car just because he flashed his turn signal without turning. * * *

This is not the first time the Indiana Court of Appeals has overturned a local conviction from a traffic stop.

In May, the court threw out the conviction of Allison Riggle on marijuana charges because she was pulled over for turning too widely onto Dr. Martin Luther King Jr. Street.

In October 2011, the court overturned the conviction of Ken Gunn for carrying a handgun with a recently expired permit, because he was pulled over for turning too widely onto North High School Road.

It's common for rulings like the Kokomo one to come out, authorities say, so officers must change to comply with the law. Just as they can no longer conduct traffic stops based on turning too widely, now they can't conduct stops based upon misused turn signals in certain circumstances. * * *

The ruling can be referenced in cases, said Brad Banks, division supervisor at the Marion County prosecutor's office, in which an officer pulls over someone for an action that's not illegal.

For example, suspects who are only pulled over for weaving within one lane might use the ruling successfully, because that's legal in most cases.

"I am sure we'll see the argument," Banks said.

But the Kokomo case also is a rarity. Most traffic violations involve running red lights and speeding, Banks said.

"It's just very rare," he said. "In 10 years I've never seen another case where that was the cause of the stop. It's just not something you see very often, quite frankly."

Courts - A Reporter's Guide to Applications Pending before the SCOTUS

An application is a request for emergency action addressed to an individual Justice. Although most applications involve routine matters such as requests for extensions of the time limit for filing papers, some—such as late night applications for a stay of execution or a restraining order in a dramatic case—draw the attention of reporters. These newsworthy applications usually concern an effort to buy time, to maintain the status quo—to stay the implementation of a lower court order—pending final action by this Court (or under certain circumstances, a lower court).

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (10/29/12):

Thursday, November 1st

9:00 AM - Ronald B. Hawkins v. State of Indiana (20S03-1208-CR-499) - Hawkins was tried in absentia and without counsel in the Elkhart Superior Court. He was found guilty of two counts of non-support of a dependent child as Class C felonies, and sentenced via videoconference to consecutive terms of four years but with all suspended and to be administered through a community corrections program. A divided Court of Appeals affirmed in part and reversed in part, finding that his due process rights were not violated by the trial or absence of counsel, that he had waived for appellate review argument relating to sentencing via videoconference, and that consecutive sentences were not an abuse of discretion, but that one of the felonies must be reduced to a Class D felony. Hawkins v. State, (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: This is a 2-1, July 3, 2012 COA opinion (5th case), where the dissent writes in part: "I respectfully dissent from the majority’s conclusion that Hawkins knowingly, intelligently, and voluntarily waived his right to counsel. Because I believe that the facts in this case are readily distinguishable from the facts in Jackson and because of the importance of an attorney for a fair proceeding, I would reverse the trial court on this issue."

9:45 AM - In re Prosecutor’s Subpoena (S.H. v. State) (73S01-1209-CR-563) - At a time when no charges were pending and no grand jury investigation had begun, the Shelby Superior Court quashed subpoenas seeking the testimony of the parents about injuries to their infant, but later granted the State’s request that the parents be given use immunity and ordered to testify. The Court of Appeals affirmed the trial court in S.H. v. State, 969 N.E.2d 1048 Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

S.H. and S.C. (collectively, “Parents”) appeal a trial court order granting the State’s petition to compel their testimony by providing use immunity. Parents argue a prosecutor may not grant use immunity when there is no grand jury proceeding and the persons whose testimony is sought have not been charged with a crime. * * *

While Parents’ argument is persuasive, we cannot reconcile the result they advocate with our Indiana Supreme Court’s statement that a prosecutor has the same ability to accumulate evidence as does a grand jury. We must agree with the State that the legislature’s explicit reference to grand jury proceedings in Ind. Code § 35-34-2-8 cannot be read to restrict the right of a prosecutor to seek use immunity when prosecution is initiated by means of an information rather than an indictment. Nor could the legislature have intended that prosecutors have fewer investigative tools before deciding to bring charges than they do after charges are brought. We accordingly affirm the trial court.

Next week's oral arguments before the Supreme Court (week of (11/5/12):

This week's oral arguments before the Court of Appeals (week of 10/29/12):

Tuesday, October 30th

11:00 AM - Paul H. Gingerich v. State of Indiana (43A05-1101-CR-27) - Gingerich appeals his conviction following a plea of guilty pursuant to a plea agreement for conspiracy to commit murder as a class A felony. Gingerich asserts that the juvenile and trial courts abused their discretion in failing to order a competency evaluation based upon developmental immaturity; that the juvenile court abused its discretion by authorizing the delinquency petition to be filed, by denying Gingerich’s request for a continuance of the waiver hearing, and by waiving jurisdiction; and that the waiver provisions in the plea agreement are unenforceable. Additionally, the State argues on cross-appeal that Gingerich’s appeal should be dismissed because he waived his right to appeal in his plea agreement and by pleading guilty. The Scheduled Panel Members are: Judges Baker, Kirsch and Brown. [Where: Indiana Supreme Court Courtroom (WEBCAST)]

1:00 PM - George D. King v. Kay S. King (49A02-1202-MF-73) - Appellant-Defendant, George Dean King (George), appeals the trial court’s findings of fact and conclusions of law approving the Receiver’s Verified Final Accounting relating to the receivership of eight business entities founded by George W. King (George Sr.) and the distribution of the receivership assets among George Sr.’s three children, George, Robert King, and Kay S. King.
George presents this court with four issues:
(1) Whether the trial court erred by approving the Receiver’s elimination of certain inter-company accounts receivable belonging to Crown Associates, Inc. prior to distributing Crown to George;
(2) Whether the trial court properly decided that the Receiver was not required to reimburse World Corp. for tax payments relating to inter-company accounts prior to distributing World to George;
(3) Whether the trial court properly enforced the Receiver’s Plan of Distribution, which required any beneficiary who unsuccessfully appealed a Receiver’s action pursuant to the Plan of Distribution to bear the costs of the appeal; and
(4) Whether the trial court properly released the Receiver from liability for all actions taken or not taken during the pendency of the receivership. The Scheduled Panel Members are: Judges Riley, Bailey and Crone. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Wednesday, October 31st

1:00 PM - Jerry Vanzyll v. State of Indiana (34A02-1111-CR-1050) - As a result of a narcotics investigation by the Kokomo Police Department, Vanzyll was arrested and convicted of several methamphetamine-related offenses and resisting law enforcement. Specifically, Vanzyll resided in a home in which police officers discovered a methamphetamine lab pursuant to a search warrant. When Kokomo police officers initially attempted to gain access to the residence, Vanzyll opened the back door, saw the officers, ran back into the house and shut the door. The officers ordered Vanzyll to return to the back door, and he eventually complied, at which time he was arrested.
Vanzyll raises three issues on appeal. First, he challenges the admission of incriminating statements he made to corrections officers while he was in custody at the Howard County Jail. Next, Vanzyll argues that the evidence that he returned to his residence and closed the back door after noticing KPD officers outside and failed to immediately return to the back door of his residence when ordered to do so by the police is insufficient to prove that he committed the criminal offense of resisting law enforcement. And, finally, Vanzyll argues that the evidence is insufficient to support his conviction for dealing methamphetamine because the State presented no evidence that there was an active methamphetamine lab in his residence on the date of the search. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes.
[Where:Seeger Jr.-Sr. High School, Fine Arts Center, 1222 South St., Road 263, West Lebanon, Indiana

Thursday, November 1st

10:00 AM - Thomson Inc., N/K/A Technicolor USA, Inc., v. Insurance Company of America, et al (49A05-1109-PL-470) - This appeal arises from a declaratory judgment action filed by Thomson against its liability insurers to obtain insurance coverage for a class action toxic tort case pending in Taiwan. In August 2011, the trial court granted partial summary judgment in favor of Thomson as to certain coverage issues and certified its order as a final judgment pursuant to Indiana Trial Rule 56(C). Thomson and the insurers (XL Insurance America, Inc., and Century Indemnity) each filed a notice of appeal from that order. The insurers subsequently filed a motion to dismiss the appeal, which essentially challenges the propriety of the trial court’s certification of its order. Oral argument is being held solely on the insurers’ motion to dismiss. The Scheduled Panel Members are: Judges Riley, Bailey and Crone. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 11/5/12):

No oral arguments currently scheduled.

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

Sunday, October 28, 2012

Ind. Courts - Vanderburgh Superior Court candidate says "his campaign is not buying votes with Facebook giveaways of prizes such as an iPad and event tickets"

See Mark Wilson's long story today in the Evansville Courier & Press. Some quotes:

The Vanderburgh Superior Court candidate defended the giveaways as savvy marketing and an Internet extension of the long-standing practice of handing out campaign keepsake materials. Blackard said he sought an opinion from the Indiana Election Commission before going forward with the idea.

"It's no different, in my opinion, than handing out items at county fairs or raffles at a fundraiser, except mine you just hit "like," he said.

Blackard said he has received a positive response and noted his campaign Facebook page had more than 5,000 followers.

"I wanted to create a buzz among young voters, and it has exceeded my expectations," he said.

A 32-year-old public defender who has practiced law for five years, Blackard is running against Judge Brett Niemeier, who presides over Superior Court's juvenile division. He has made ethics one of the cornerstones of his campaign with his pledge to not accept contributions from attorneys or others who might come before the court if he is elected. * * *

While Blackard sees the giveaways as part of a campaign strategy that builds on social media's innate grass roots appeal and openness to cross marketing plans, Niemeier said he sees it as a potential influence on voting, especially since ballot casting through absentee and early voting has already started. * * *

That law prohibits someone from paying or offering something of value in exchange for applying for an absentee ballot, casting an absentee ballot, registering to vote or voting.

"In fact, campaigns routinely and legitimately pay people salaries to engage in electioneering activity like this (promoting candidates on the Internet or distributing and placing yard signs)," Simmons wrote. "The only questions that can arise in this context is whether payments made to people are a 'pretext' for vote buying. This will depend on the specific facts of a particular case."

Simmons went on to write Blackard that he didn't believe the giveaways compared with other examples of vote buying he knew about, but he cautioned: "I just want to indicate that seeming legitimate activity can be used as a pretext for vote buying in extreme circumstances so that my views expressed here cannot be misused by others as justification for wrongdoing."

The story continues with a section beginning:

Former Indiana Supreme Court chief justice and Evansville native Randall Shepard said merit selection removes judges from perceptions of inequality in the courtroom and also from the tendency of "down ballot" offices such as judges to win elections based on their affiliation with the prevailing political party in any given year.

Seth Slabaugh of the Muncie Star-Press has interesting details today about a lengthy, multimillion-dollar voluntary remediation of the former Indiana Steel & Wire factory in Muncie. The long story begins:

MUNCIE — Now that two dozen abandoned Indiana Steel & Wire factory buildings have been knocked down and removed, the party responsible for the remaining cleanup at the toxic site is turning its attention to acres and acres of concrete floor slabs.

The slabs will be crushed to pieces if the Indiana Department of Environmental Management gives its approval.

The site covers 30 acres on the north side of East Jackson Street along the east side of the White River.

GK Technologies, a Fortune 500 company responsible for the cleanup, entered into a voluntary remediation agreement with the state in 1996 to clean up three IS&W properties.

Caitlin Huston has the long story in the Logansport Pharos-Tribune. The subhead: "Democrat Leo Burns running for re-election against Republican Douglas Cox." Some quotes from the concluding section of the story:

Both Cox and Burns have received reprimands from the Indiana Supreme Court. As Superior Court Judge, Cox received a 30-day-suspension in 1997 after the Supreme Court found that he had violated the Code of Judicial Conduct by increasing a woman’s sentence because she demanded a jury trial and for other misconduct involving her case.

In the initial interview, Cox apologized for the situation, saying that he was unaware at the time of some of the guidelines mandated by the state in sentencing.

“Simply, I made a mistake,” Cox said. “I learned from the mistake, and I’m a better judge because of it,”

However, he later added in a phone interview that he was not legally allowed to discuss the case.

“There is a system in place on all matters that happen in any trial court,” Cox said. “Appellate courts review the decisions, in this case conviction and sentence were affirmed. The parties also have the right to voice their complaints through another system. Judges are not able to discuss details of any case.”

Burns received a public reprimand in 2008 for a 2004 case where he had been an attorney on an appeal. The court found that Burns had failed to give a copy of the appellate court’s denial ruling to a defendant, causing the defendant to miss a deadline for filing another appeal.

Burns said he would not comment further on the case, but at the time he said he accepted the court’s ruling.

“I take full responsibility for my actions,” he said. “I accept the Supreme Court’s order as a fair and just resolution of this matter.”

An unusual plea to Hoosier hunters from the state Department of Natural Resources demonstrates a danger of canned-hunting operations in Indiana.

Last week the DNR asked hunters in Jackson, Bartholomew, Jennings and Scott counties to be on the lookout for deer with yellow ear tags and to kill them if possible. Earlier this year, farm-raised deer that were sold to a high-fenced hunting operation in Jackson County escaped, and there is a chance the escaped deer were exposed to a confirmed case of chronic wasting disease.

“This is serious stuff. It could jeopardize our Indiana wild whitetail herd, and this is exactly what we have been fearing,” wrote Gene Hopkins, president of the Indiana Sportsmen’s Roundtable, in an email.

The escape is the nightmare scenario opponents of canned hunting foretold when testifying against these operations. Earlier this year some state lawmakers were pushing legislation not only to grandfather in four existing captive hunting businesses but encourage the growth of the heinous practice of high-fenced hunting.

Courts - "Groups battle over how to pick judges in Missouri"

From the St. Louis Post Dispatch column, "Political Fix," an Oct. 27th story by Elizabeth Crisp. Some quotes from the long article:

JEFFERSON CITY • The fight over whether Missouri should change its process used to select state appellate judges isn’t likely to cool down anytime soon.

Despite abandoning their campaign for a measure that will appear on the Nov. 6 ballot, opponents of Missouri’s judicial selection process say they will continue to push for reforms in the coming year. * * *

Missouri’s process for filling vacancies on the state Supreme Court and Court of Appeals -– dubbed the Missouri Plan -- has been used since 1940 and has been used as a model for other states. Under the plan, a commission selects three finalists for each judicial post, from which the governor chooses the appointee.

Under the current law, the Appellate Judicial Commission includes a Supreme Court judge, three people selected by Missouri Bar members and three gubernatorial appointees who are not bar members. The ballot measure would replace the Supreme Court judge with another political appointee – leaving three bar members and four “citizen” members selected by the governor.

The Missouri Plan has faced mounting criticism in recent years, primarily from conservatives who claim it gives too much power to trial lawyers. They prefer judicial elections or systems modeled after the federal government that rely on gubernatorial appointees confirmed by state lawmakers. * * *

Conservative groups, such as the Washington-based Federalist Society and Heritage Foundation, have been waging war against the Missouri Plan for several years.

So far, no state that uses a merit-based system modeled after Missouri’s has abandoned it for elections-based or federal-style plans.

Some leaders in Tennessee, Kansas and other states that use versions of the Missouri Plan also have questioned its use. Likewise, groups in states like Pennsylvania, which relies on elections, and Virginia, which leaves judicial selection to the state Legislature, have proposed systems that resemble the Missouri Plan.

Among the key claims against the Missouri-styled selection process, opponents say trial lawyers are given too much control.

“It is a process by which legal special interest groups have exerted too much influence,” Harris said.

As one of the Democratic Party's biggest sources of campaign cash, trial lawyers have become a frequent target for conservative groups. * * *

Meanwhile, the Iowa-based American Judicature Society and other groups, as well as retired U.S. Supreme Court Justice Sandra Day O’Connor, have advocated the Missouri Plan as a model for states across the country. They argue that judicial elections inject more politics into the courts because of the reliance on campaign cash and backing from partisan and interest groups.

Courts - "Search for U.S. attorney to succeed Patrick Fitzgerald narrows to 8 former prosecutors"

Saturday, October 27, 2012

Ind. Law - Do "many of Indiana's most violent criminals and repeat felons get out of prison decades early"?

A WTHR 13 Eyewitness News investigation "shows many of Indiana's most violent criminals and repeat felons get out of prison decades early. 13 Investigates shows how it happens and why thousands of murderers, rapists, drug dealers and child molesters are back on the street much sooner than expected." This is the intro to a news report by Bob Segall, initially aired Oct. 25th. Some quotes from the very long story, with video:

Each year, about 18,000 convicted criminals are released from Indiana state prisons, according to the Indiana Department of Correction. Nearly all of those inmates serve less than 50% of their original sentence because of a program known as "good time credit."

State lawmakers established it in the late 1970s. To help IDOC deal with unruly prisoners, lawmakers doubled the standard sentence for many crimes, then offered convicted criminals the ability to cut their sentence in half through good behavior.

"If they behave, then by Indiana state law, they can earn a day [cut off their sentence] for a day [of good behavior]," explained Jerry Vance, IDOC's executive director of programs. "It's a big incentive… and it means if an individual's time is up based on the way he was sentenced, then we have to release them."

That means most criminals never serve more than half of their sentence – as long as they behave.

But 13 Investigates found inmates who don't behave still get their good time credit anyway. * * *

When it comes to getting out of prison early, good time credit is just the beginning.

Each year, thousands of prisoners get more time – sometimes a lot more time – knocked off their sentences by participating in prison programs and classes. * * *

13 Investigates obtained a massive database containing information on more than 30,000 criminals recently released from Indiana prisons. The database shows thousands of batterers, molesters and murderers were able to stack program credits and good time credits to significantly reduce their sentences.

Eyewitness News' analysis shows, on average, child molesters served 44% of their ordered prison sentence, murderers served 42%, and intoxicated drivers who kill people were released after spending just 35% of their sentence in prison.

A followup story, originally aired Oct. 26, is headed "Lawmakers propose changes to early release rules." Some quotes:

13 Investigates discovered thousands of violent offenders released after serving only a small fraction of their sentence.

"When you look at cases like these, do you think justice has been served?" 13 Investigates asked Sen. Brent Steele (R-Bedford).

"No. How could you look at that and say justice was served? Shocking," Steele said.

After seeing the results of our investigation, state lawmakers say there will be action.

"That is a topic that is being discussed now," said Rep. Greg Steuerwald (R-Danville).

Steuerwald plans to introduce legislation in the House, while Steele will sponsor a bill in the Indiana Senate.

Both lawmakers want to stop a widespread practice documented by 13 Investigates. It involves inmates who take classes inside prison. The classes aren't the problem, it's that each class allows an inmate to cut months or even years off his punishment and some inmates accumulate enough credits to drastically reduce their sentences.

"I don't think the intent was ever (that) you'd be able to stack so many credits. That's clearly an abuse of the process," Steuerwald said.

Inmates can currently get up to four years off their sentence for taking classes and programs behind bars. Lawmakers now want those incentives reduced.

"The maximum credit you're going to be allowed is two years. Period. You can't stack and you're not going to get any more than that," Steele said.

Inmates will still be able to get their sentences cut in half, because of what's called "good time credit." It allows an inmate to get one day cut off his sentence for every day of good behavior behind bars.

But 13 Investigates found the Indiana Department of Correction is giving inmates good time credit even when they don't behave. * * *

"I never, for the life of me, thought you could offend inside the prison walls, have your good time credit taken away from you, then if you're good for a little while, you get it reinstated to you," Steele said. "So where's the incentive to stay good inside the prison walls if you know you're just going to get it back? Where's the logic in that?"

Steele, the chairman of the Senate Corrections Committee, says that's got to change and he's now drafting that language.

"That once you've lost your good time for breaking rules inside prison walls, whatever they take away from you in your good time credit, it's gone forever. There's a consequence to it. You never get it back," Steele said.

Lawmakers say the changes are necessary to help ensure safety in prisons and justice for victims.

"I think, in part, the system has failed them. So yes, we're going to deal with these issues and make these corrections," said Steuerwald.

Two separate legislative commissions are now working on issues involving how much time criminals will actually spend behind bars. Their reports and recommendations will be released next week.

Action the Indiana Commission on Judicial Qualifications took this week might raise some free-speech questions, but voters tired of endless campaign allegations might find it refreshing.

The commission filed disciplinary charges against an attorney running for Franklin Circuit Court judge. The commission accused Tammy Davis of making misleading statements about the incumbent, Judge Steven Cox.

Davis accused the judge of releasing an inmate earlier than he should have, and the man he released went on to commit crimes that wouldn’t have happened if he hadn’t been released early. However, Davis’ explanation of the timing of the release was wrong. Further, Davis also claimed the inmate was a childhood friend of the judge, but there is no evidence to support that accusation.

Worst of all, the commission alleges Davis knew her statements were inaccurate.

While Mitt Romney and President Obama can trade misleading, mean-spirited and even outright false allegations, it’s different for attorneys and would-be judges, who must follow codes of conduct. And in recent years, the Indiana Supreme Court has cracked down on attorneys who violate those codes.

The judicial commission has filed seven charges against Davis, accusing her of knowingly making misleading statements and committing actions that compromise “the independence, integrity, and impartiality of the judiciary.”

The state Supreme Court will appoint a three-person panel to conduct a public hearing on the allegations, which will almost certainly come after the election.

[T]his case involves a historic theater building located at 3155 East 10th Street in Indianapolis, which Chulchian1 transferred ownership of to Rivoli Center in 2007. Pursuant to the deed, Chulchian retained a life interest in the upstairs residential apartments with the exclusive right to personally occupy these units.

On June 22, 2011, Rivoli Center and the Indianapolis Eastside Revitalization Corp. (IERC) filed a complaint seeking, among other things, to terminate Chulchian’s life interest on the grounds that he was committing waste to the historic theater and that his continued presence and occupancy constituted a nuisance.

Ind. Courts - "The Indiana Commission on Judicial Qualifications has filed disciplinary charges against Tammy R. Davis, a candidate for judge of the Franklin Circuit Court."

The charges stem from allegedly misleading statements Ms. Davis made (or which were attributed to her) about her opponent, Judge Steven Cox, during her campaign for Circuit Court judge. Several charges also stem from Ms. Davis’ failure to correct these statements.

The Code of Judicial Conduct applies to both judges and candidates for judicial office. If the Commission on Judicial Qualifications believes a judge or candidate for judge has violated the code of conduct, it can file charges, as it has done against Ms. Davis. The charges are allegations—only the five members of the Supreme Court can determine what, if any, allegations are true.

The charges center on statements made by or attributed to Ms. Davis regarding her opponent’s modification of a criminal defendant’s sentence. The statements relate to a defendant’s prison release date. Judge Cox released the defendant to probation in July 2010, but Ms. Davis maintained he was not eligible for release until March 2011. The defendant was in fact eligible for release in September 2010. The defendant is alleged to have committed crimes between September 2010 and March 2011. Ms. Davis repeatedly gave the public impression that the defendant would have been in prison at the time of the alleged crimes if Judge Cox had not modified his sentence.

The Judicial Qualifications Commission contacted Ms. Davis to alert her to the inaccuracies in her statements, and provided a letter from the Department of Correction verifying the defendant’s “out” date as September 2010. Still, Ms. Davis failed to correct the misleading statements made by or attributed to her that gave the inaccurate impression to the public that the defendant would have been in prison and would not have been able to commit certain crimes, including murder, had Judge Cox not modified the sentence.

A local newspaper attributed to Ms. Davis the statement that Judge Cox modified the defendant’s sentence because he was a boyhood friend of the defendant. There is no evidence to support Judge Cox and the defendant were friends.

[More] On August 30th the ILB posted an entry headed "This is very strange ...". It reported that Judge Cox was holding a public presentation to defend himself against charges.

Ind. Law - What charges for drivers with blood alcohol over .08? Counties reportedly vary

WANE.com 15 Fort Wayne has a lengthy story and video this morning, reported by Adam Widner, headed "15 Finds Out: What happens after .08?" A quote:

Lights flash, siren sounds, you pull over. About the first thing the officer checks is if you’ve been drinking. Police agencies across Indiana crack down on drivers who are operating while intoxicated. Indiana law states, a driver's blood-alcohol content cannot go over .08. But how each case gets treated from there is different depending on where the arrest happens.

Ind. Courts - Justice Rush to assume duties November 7th

A Tippecanoe County judge will soon be the newest member of the Indiana Supreme Court.

Greater Lafayette Commerce hosted a reception to recognize Judge Loretta Rush for her services to the youth in Tippecanoe County. Rush as served as a juvenile court judge in Lafayette for 14 years.

Last month, Judge Rush was named by Governor Daniels to serve as the 108th justice on the Indiana Supreme Court. She will be the first women to sit on the bench since 1999.

She said this isn't something she has always dreamed of, but she's excited to accept the challenge.

"It's been a tough couple of weeks saying goodbye to some of the families I've worked with for a long period of time so I liked my job but I'm excited about my new job," said Rush.

Judge Rush's last day as Tippecanoe County judge will be November 6. She will take her spot on the Indiana Supreme Court the next day.

ILB: According to the Court's calendar, incoming Justice Rush will have some time to get acclimated before hearing her first oral arguments. The Court will hear two oral agruments on Nov. 1st, but then nothing until Wednesday, Nov. 21st. On that day the Court will hear three oral arguments, the first being Meridith v. Daniels, the school voucher case.

An Indiana man caught in a legal battle with the state for a photo ID card will get his chance in a due process hearing scheduled this morning.

Joesph Worley was born in Indiana and currently resides in Muncie. His license was suspended after a drunken-driving conviction and he has been trying to get a new one since 2008, but says he has been unable to do so.

The reason, according to court documents, is that Worley's Social Security card, which reads "Joesph A. Worley," and his birth certificate, which reads "Joseph Alan Ivey," do not match.

As Ms. Disis reported in the earlier Oct. 18th story, "Worley's hearing was ordered by U.S. District Judge Sarah Evans Barker earlier this month." More from today's story:

Worley brought the complaint after being unable to get a photo ID card, which is required to vote under the 2007 Indiana voter ID law. Given requirements by the Bureau of Motor Vehicles, Worley would be required to change his name first, something he says he can't do without a photo ID.

"We are pleased the BMV is complying with the Court's order by scheduling a due process hearing, which we trust will be presided over by a truly impartial and independent decision maker," said a statement from William Groth, Worley's attorney. "Mr. Worley is prepared to establish his identity at that hearing through every means reasonably available to him and to demonstrate once and for all that he intends to vote legally and only once in this year's election."

Ind. Courts - State bar ass'n urges a "yes" vote for the two Supreme Court justices and four COA judges on Nov. ballot

The Fort Wayne Journal Gazette today has an opinion piece from Erik Chickedantz, a Fort Wayne attorney, who is the outgoing president of the Indiana State Bar Association. Some quotes:

On Nov. 6, Hoosiers have the opportunity to vote on the retention of two Supreme Court justices and four Court of Appeals judges. A recent poll conducted by the Indiana State Bar Association showed that each received more than 80 percent support for retention by Indiana lawyers. These justices and judges each play a vital role in our judiciary. Each should be retained. * * *

[J]udicial independence can only be achieved when judges have the freedom to make decisions according to the law, without regard to political or public pressure.

And that pressure is what I write about today. * * *

Some members of the public have, unfortunately, reacted negatively to a single case in which one justice wrote the majority opinion and three of the other four justices joined. Of course, criticism and debate of judicial decisions are a vital part of America’s political and governmental discourse and are protected by the First Amendment. However, if our judiciary is to remain able to perform its constitutional functions without improper influences, it must be immune to attacks that seek to influence judicial decision-making. Punishing a judge over a single decision, a snapshot in time, if you will – as opposed to looking at the whole picture of that judge’s service – lowers the status of the judicial process and can send a chilling message to other justices and judges. Hoosiers deserve better.

An example of a snapshot evaluation involves [Justice Steven David], who wrote a single opinion, approved by 80 percent of the court, which has received some public criticism. Looking at the whole picture of David’s service compels retention. He has been a veritable workhorse on the court, a fierce defender of the rule of law, a champion of children and an unparalleled ambassador of the Supreme Court in promoting accessibility and transparency to the public.

The justices and appellate judges up for retention are respected jurists, consummate professionals and devoted public servants. They are true Hoosiers with Hoosier values. They have devoted their lives to upholding and defending our Constitution.

Our Supreme Court justices and Court of Appeals judges must not be swayed by public pressure. They must maintain sole loyalty to the laws that govern us – only then can they preserve their impartiality.

These justices and judges must uphold the independence of the judiciary, even under extraordinarily difficult circumstances. For that they should be respected, not punished.

And for their service to Indiana, to the judiciary, to the public and to the rule of law, the justices and judges should be retained.

In addition, the Indiana State Bar Association website hosts an opinion piece by Prof. Joel M. Schumm, Indiana University McKinney School of Law, titled "All Six Judges Have Earned 'Yes' Votes for Retention":

Getting a large group of lawyers to agree on anything is no small task, so the poll that shows more than
80% of the state lawyers support the retention of the two Indiana Supreme Court justices and four Court
of Appeals judges on the ballot in November is truly remarkable.

This overwhelming support for judges is not based on winning or losing cases but rather on the manner
in which each judge approaches cases and treats the lawyers and litigants. I’ve had the privilege of
arguing cases before all six of the judges and have lost more often than I’ve won. Nonetheless, I
strongly support their retention because each has a respectful demeanor and proven record of
impartiality, thoughtfulness, and hard work. Win or lose, litigants and lawyers know their cases were
carefully and fairly considered before Justices David and Rucker and Judges Baker, Barnes, Mathias, and
Vaidik.

Because judges make hundreds of decisions each year on a variety of difficult and controversial issues,
sometimes a decision may cause a stir. Like some others, I took issue with parts of the Barnes decision
written more than a year ago by Justice David. I raised those concerns in a friend‐of‐the‐court brief filed
on behalf of a group of legislators. In response to that and other briefs, the Court issued an opinion that
clarified the ruling, which help pave the way for the General Assembly to make modest changes to
Indiana’s self‐defense statute after a great deal of discussion and debate. Whatever one’s opinion of
the Barnes’ decision, that series of events demonstrates how each branch of government can
appropriately exercise its role in resolving important issues.

Basing a retention vote on the Barnes decision—or any other single case—fails to consider the
impressive and impactful work Justice David has done since joining the Court more than two years ago.
Justice David has written or participated in more than a hundred Supreme Court oral arguments and
opinions as well as deciding which of more than 1,000 Court of Appeals’ decisions the Supreme Court
should review. He has taken an active role in helping to ensure that our system of justice is truly just
through committees like the Juvenile Detention Alternatives Initiative (JDAI), which works to minimize
the detentions of juveniles that result in negative consequences both for public safety and youth
development. He has served as an ambassador of the Court by speaking with students, community
groups, and lawyers on literally hundreds of occasions.

Unlike the barrage of thirty second ads for political offices, little is written or broadcast about the
judicial retention candidates. And in a “yes” or “no” contest, unfortunately a few vocal “no” advocates
may dominate a discussion. When deciding whether to support a judge’s retention, taking a few
minutes to review the retention website or talking with
a lawyer familiar with the judges’ work can yield invaluable information. This information, not a
decision in a single case, led the vast majority of the state bar members to support the retention of all
six of the judges on the ballot.

OTTAWA — AND you thought pipeline politics in the United States were treacherous. Rebuffed by Washington on bringing the Keystone XL pipeline down through the western United States, Canada now finds that its Plan B — to build a pipeline to its west coast for shipping to Asia — has become mired in domestic politics thick enough to rival the tarlike oil it hopes to sell.

Getting the oil to the Far East first requires building a $5.5 billion, 730-mile pipeline from landlocked Alberta over a series of mountains to the coast of northern British Columbia. About 220 tankers a year would then navigate some of Canada’s most scenic yet treacherous waters to complete the trip.

While opposition from environmentalists and some native groups was always expected, the Enbridge Northern Gateway Project has unexpectedly united British Columbians who normally are on opposite sides. Mistakes by Enbridge, which is based in Canada, have further fueled the resistance. They included missteps at regulatory hearings and the handling of a recent pipeline spill in Michigan, which was sharply criticized by the American authorities.

A few days earlier, on Oct. 18th, the NY Times Green Blog had a long entry by Dan Frisch titled "Aging Pipeline Poses Threat to Great Lakes, Report Says." It begins:

A report released on Thursday by the National Wildlife Federation questions the safety of a network of oil pipelines operated by Enbridge that run through the Great Lakes region.

The group contends that Enbridge’s pipelines in the area are especially susceptible to spills because of their age and the company’s recent history of accidents — creating a situation the environmental group said could be disastrous for the fragile ecosystems in Lake Michigan.

The report was prompted in part by Enbridge’s recent plans to expand its enormous Lakehead System of pipelines, which carry oil and other products from Canada to the United States.

Ind. Gov't. - Yet more on "Jasper Circuit Court Judge John Potter on Thursday ordered that Linda Belork be reinstated immediately to her position as Starke County Treasurer"

Updating a series of recent ILB entries, including this one from yesterday afternoon, here is more today from Anita reporting for K99.3FM in a story that begins:

By order of the Jasper Circuit Court Judge John Potter, a telephonic case management conference was held Wednesday, October 24 concerning Judge Potter’s ruling regarding the reinstatement of Starke County Treasurer Linda Belork.

Starke County Attorney Martin Lucas and Belork’s counsel, Ethan Lowe, were part of the hearing where the Court found that disobedience of process or order, and interference with execution of process or order was conducted when the Starke County Commissioners met and voted to close the Office of the Starke County Treasurer, thus nullifying the Judge’s order to reinstate Belork to the office.

All three Commissioners and the county attorney plus Linda Belork and her counsel are scheduled to appear in Jasper Circuit Court on Monday, October 29 at 3:00 p.m. to show cause why they should not be held in indirect contempt of Court.

Ind. Decisions - Oral argument in Paul Gingerich case next Tuesday

On Tuesday, October 30th, at 11:00 AM, in the Supreme Court Courtroom, a Court of Appeals panel, consisting of Judges Baker, Kirsch and Brown, will hear oral argument in the case of Paul H. Gingerich v. State of Indiana.

For background in this case, start with this ILB entry from Sept. 6, 2012, headed "14-year-old killer tried as adult to receive hearing that could send case back to juvenile courts."

Ind. Decisions - Update on Indiana Sex Offender Law

A petition to transfer has been filed in the case of Cline v. State. This was the July 26, 2012, 2-1 COA opinion where Chief Judge Robb's dissent includes: "This is a case about whether a person who should not have had to but was erroneously required to add his name and information to the registry in the first place is entitled to relief in the form of having his name and information removed." The majority in the case ruled no.

A month after Cline was decided, the 7th Circuit issued its opinion in Schepers, et al v. Ind. Dept. Corrections, requiring due process rights for individuals erroneously on the Sex Offender list. See this ILB post.

The ILB hasn't received the Cline petition to transfer, but it does have the Indiana ACLU amicus petition.

Today the Criminal Law and Sentencing Policy Study Committee met and agreed upon a draft of a bill to revise the Indiana Sex Offender statute. A copy of that draft is not yet posted on the study committee's website.

This story is in today's paper NY Times. The blurb reads: "A New Jersey case over whether a woman can be called the mother of the child she and her husband had through a surrogate shows the murkiness of surrogacy laws in the United States." A few quotes:

On Wednesday the New Jersey Supreme Court deadlocked over how to handle the wife’s plea to be named the mother of the child that she and her husband are raising, ending a lengthy legal battle while providing little new clarity. The state had sued, successfully, to strip the wife’s name from the birth certificate. The couple argued this was discrimination: State law automatically makes an infertile husband the father if his wife uses a sperm donor, so why should the same presumption not apply to an infertile wife? An appeals court disagreed with that distinction, siding with state officials who argued adoption was the only option for a mother with no genetic connection to a child.

The court’s split had the effect of affirming the appellate court’s ruling and leaving the child, now 3, legally motherless. It also neatly captured the continued uncertainty across the country, 25 years after New Jersey was at the center of what remains the best-known surrogate custody dispute, over a child known as Baby M.

Recall this ILB entry from Jan. 29, 2011, headed "In the Age of Alternative Reproduction, Who Are a Child's Parents?" It discusses Indiana's Feb. 17, 2010 Court of Appeals opinion in Paternity of R.; T.G. and V.G. v. State of Indiana.

[More]How Appealing has just posted links to a number of articles on the New Jersey decision.

Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)

State Farm Mutual Automobile Insurance Company (“State Farm”) appeals the trial court’s order denying its motion for summary judgment against the Ken Nunn Law Office (“Nunn”). State Farm raises one issue, which we restate as whether the court erred in denying its motion for summary judgment. We reverse and remand. * * *

Nunn initiated a lawsuit on behalf of Henderson against Beal on or about March 2, 2010. Henderson sent a letter to Nunn dated March 22, 2010 stating that he was not satisfied with the way the case had been handled by Nunn and that he no longer needed Nunn’s services. * * *

[A. Attorney Fee Lien] We decline to expand upon this State’s previous articulations of the boundaries of the reach of an equitable lien for the protection of attorney fees where the proceeds of the compromise have been transferred to the attorney’s former client and thus decline to hold that a charging or equitable lien may be enforced against a party other than Nunn’s former client under these circumstances where prior to settlement Nunn was no longer counsel for Henderson and was paid its expenses. See Hanna, 5 Ind. App. 163, 31 N.E. at 847-848. We conclude that Nunn may not seek payment of Henderson’s attorney fees from State Farm under an equitable attorney fee lien, and State Farm is entitled to summary judgment on this basis.

[B. Quantum Meruit] Further, Nunn may not seek payment of Henderson’s attorney fees from State Farm based on a theory of quantum meruit. * * *

Based upon the designated evidence, we conclude that the court erred in denying State Farm’s motion for summary judgment and failing to enter summary judgment in favor of State Farm and against Nunn. For the foregoing reasons, we reverse and remand for proceedings consistent with this opinion.

Courts - "Tom Goldstein changed how lawyers get to the Supreme Court—and how news gets out of it"

See Stephanie Mencimer's article in The Atlantic on Tom Goldstein, of SCOTUSblog. A sample:

The Court’s stance toward Goldstein’s Web site encapsulates its anachronistic approach to communicating with the outside world. Keep in mind that in 2012, as a member of the press, you still can’t blog or tweet or even take notes on a laptop inside the courtroom. And yet the Court’s ambivalence toward modern media is to some extent SCOTUSblog’s gain. The site’s greatest traffic surge to date came on the morning of the Affordable Care Act decision, in June, when readership jumped from about 40,000 page views a day to more than 3 million—leading Goldstein to immodestly declare SCOTUSblog “the subject of perhaps greater demand than any other site on the Internet—ever.” Much of the credit for that traffic goes to the site’s singularly fast, accurate reporting on the decision, but it didn’t hurt that the Court was so unprepared for a traffic surge that its own Web site crashed, preventing it from releasing the decision.

To understand Goldstein’s unusual relationship with the Court, you must back up to the beginning of his career. Most members of the Supreme Court bar studied law at one of just three schools (Harvard, Yale, Stanford), then clerked for a justice or worked in the Office of the Solicitor General. Goldstein did none of these things. “I was rejected by every law school I applied to,” he told me.

Law - Estate Planning in the Digital Age

beSpecific this morning points to a useful article by Gerry W. Beyer - Texas Tech University School of Law:

This article aims to educate estate planning professionals on the importance of planning for the disposition of digital assets, provides those planning techniques, and discusses how to administer an estate containing digital assets. The appendix contains a sample form which may be used to organize digital assets."

This suit began when the City of Indianapolis required adult bookstores to be closed all day on Sunday and between midnight and 10 a.m. on other days. We held last year that the empirical support for this ordinance was too weak to satisfy the requirement of intermediate scrutiny, which applies to such laws. * * * The City needs evidence about the effects of the sort of law it enacted. We suggested that experience in Indianapolis itself could supply the required data: Before the City’s ordinance took its current form, plaintiffs had been treated like other bookstores, so it should be possible to find out whether the new closing hours reduced crime or produced other benefits. 581 F.3d at 463.

After the remand, plaintiffs asked the district court to enter a preliminary injunction. A hearing was held, at which Indianapolis offered a single piece of evidence: Richard McCleary & Alan C. Weinstein, Do “Off-Site” Adult Businesses Have Secondary Effects? Legal Doctrine, Social Theory, and Empirical Evidence, 31 L. & Policy 217 (2009). The authors concluded that dispersing adult stores that sell for off-site reading or viewing reduced crime in Sioux City, Iowa. Indianapolis contended that this article supports its ordinance too. The district judge was skeptical, and entitled to be so, for three reasons. * * *

The district judge did not abuse her discretion. The single article that Indianapolis offered suffers some of the shortcomings of the evidence we evaluated last year: it concerns a dispersal ordinance rather than an hours-ofoperation limit, and the authors did not attempt to control for other potential causes of change in the number of arrests near adult establishments. The other new evidence, derived from experience with this ordinance in Indianapolis, appears to support the plaintiffs (though a statistical analysis might show that the support is illusory). Given the state of the record, the district court’s decision is sound. The parties should devote their energies to compiling information from which a reliable final decision may be made after a trial on the merits. AFFIRMED

INDIANAPOLIS - A lawsuit against the city by a number of adult bookstores could hit taxpayers in the pocketbook.

The suit was filed in October of 2003 and finally got in front of a federal judge last week. [ILB: Surely he means "got in front of a judge again".]

Four Indianapolis area bookstores want the judge to declare the city's adult entertainment ordinance unconstitutional and they also want the city to pay for lost revenues.

The original lawsuit was filed by the Annex Bookstore at 38th Street and Pendleton Pike. After more than 20 years in business, the city denied renewal of the store's retail license.

The licensing division said it would conduct an investigation of the business, and then several months later, the City-County Council passed another, more restrictive ordinance regulating adult entertainment.

Among other restrictions, the ordinance forbids private viewing booths and limits hours of operation.

In bolstering its more restrictive ordinance, the city argued that cutting hours of operation would cut crime in nearby neighborhoods. * * *

The bookstores allege the city is trying to restrict free speech and the dissemination of protected sexually oriented content. They also allege that the ordinance allows the city to deny or suspend licenses without cause, while permitting unauthorized and warrantless searches of their businesses.

The city's corporation counsel said their policy prohibits them from commenting on pending litigation.

If the bookstores prevail in their claim, the payout could be in excess of a million dollars.

We are testing the capability of the media to get HD video through a pool feed outside the courtroom. Supreme Court rules allow for the press to obtain audio and video of arguments and require the press to work together in a pool situation. The rules are designed to allow every media agency present to obtain video. Today’s test (which went extremely well!) was to assess the ability to host that pool feed in HD format. The test does not affect what the Court streams online.

The 9th U.S. Circuit Court of Appeals upheld the police arrest of Laurie Tsao for trespass after her banishment as an “advantage gambler,” otherwise known as card-counters. The court said her civil rights suit was properly dismissed.

Courts - "A law review article suggests that flubbing an argument can sometimes be a fast track to the Supreme Court"

Tony Mauro has this article in Law.com's Corporate Counsel. It begins:

Are lawyers throwing their clients under the bus in pursuit of a highly coveted chance to argue before the U.S. Supreme Court? That question is raised by an intriguing article in the Harvard Journal of Law & Public Policy that focuses on lawyers who have the task of opposing certiorari in a case that has been appealed to the high court.

Lawyers in the position of respondent ordinarily urge the Supreme Court not to take up the case, in large part because their client won in the court below. But author Aaron Tang asserts that as appearances before the Supreme Court become rarer and prized "beyond quantification," these lawyers face unhealthy incentives to soft-pedal their arguments so that the court will grant review anyway and set the case for oral argument.

Mauro refers to Aaron Tang's 58-page article in the current issue of the Harvard Journal of Law & Public Policy, titled "The Ethics of Opposing Certiorari Before the Supreme Court."

Mauro also writes:

Tang isn't the first scholar to suggest that the increased prestige and value of appearing before the Supreme Court may be distorting attorney incentives to the detriment of clients and the court itself. In a controversial 2010 article, professor Nancy Morawetz of New York University School of Law suggested that pro bono lawyers and newly created Supreme Court clinics may, in the interest of burnishing their high court credentials, be appealing cases that should or would otherwise be left alone.

Ind. Decisions - Court of Appeals issues 3 today (and 4 NFP)

Based upon the Forbearance Agreement and Watkins’s directive to wire the funds to make the final payment, we conclude that Singleton’s payment was not untimely and did not constitute a Termination Event under the Forbearance Agreement. Accordingly, the trial court erred in granting Fifth Third Bank’s Renewed Motion for Entry of Agreed Final Judgment and denying Singleton’s cross-motion to enforce the Forbearance Agreement. We reverse the court’s October 27, 2011 order and remand for further proceedings consistent with this opinion.

Harry E. Knauff, Jr. and Carolyn R. Knauff appeal the trial court judgment quieting title in certain real property in the names of Nathan T. Hovermale and Sara E. Hovermale following a bench trial. The Knauffs present three issues for review, which we consolidate and restate as whether the trial court erred when it determined that the Knauffs had not met their burden to prove adverse possession. We affirm. * * *

Again, failure to establish any one element of an adverse possession claim defeats the claim. Fraley, 829 N.E.2d at 476. The Knauffs have not shown that the trial court clearly erred when it concluded that they failed to establish the control element of adverse possession. Thus, we need not consider whether they have established any other elements of adverse possession. As such, the Knauffs have not shown that the trial court erred when it entered judgment in favor of the Hovermales on the Knauffs’ complaint seeking a declaratory judgment, to quiet title in the disputed area, and seeking damages for trespass on the disputed area. Affirmed.

Leslie Grider appeals her sentence following her convictions, in three separate causes, for two counts of forgery, Class C felonies; four counts of theft, as Class D felonies; and two counts of check fraud, as Class D felonies; pursuant to a plea agreement. Grider raises a single issue for our review, namely, whether the trial court erred when it imposed a sentence that violates the terms of her plea agreement. We reverse and remand with instructions. * * *

Grider contends that the trial court violated the terms of her plea agreement when it imposed consecutive sentences. Our courts have long held that plea agreements are in the nature of contracts entered into between the defendant and the State. * * *

We hold that the sentencing provision in the plea agreement is not ambiguous and that the plain meaning of the language indicates the parties’ intention that the trial court would impose concurrent sentences on all counts regardless of the separate cause numbers.

Further, even if the provision were ambiguous, any ambiguity is resolved in favor of the defendant. Rather than relying on extrinsic evidence, as the State would have us do, the better rule is to strictly construe the plea agreement against its drafter, the State. * * * We reverse and remand and instruct the trial court to impose concurrent sentences for all counts and all cause numbers, for a total aggregate term of eight years, executed.

Ind. Courts - Former COA Chief Judge Sanford M. Brook now an actor

Here is the lengthy Oct. 21st story in the South Bend Tribune, reported by Andrew S. Hughes. It appeared in the Sunday entertainment section. Some quotes:

About nine years ago, Brook moved to Colorado to take a position as a mediator with an arbitration firm, and while there, he’s begun to pursue his long-dormant desire to act.

All along, he’s carried one dream and desire: to play Clarence Darrow, the defense attorney best known today for the Scopes “Monkey” Trial and the Leopold and Loeb thrill-kill murder trial.

“We are all passionate about what we do and what we represent — we better be,” Brook says about lawyers and judges. “But (Darrow) was not only passionate; he could show compassion toward whatever he was representing.”

Local audiences can render their verdict on Brook’s progress as an actor when he returns to South Bend to perform the one-man play “Darrow” on Wednesday at the Century Center as a benefit for the St. Joseph County Bar Foundation to raise money for its civic and charitable programs.

A graduate of Adams High School and Indiana University Bloomington for both his undergraduate and law degrees, Brook is a former chief deputy prosecutor in St. Joseph County, practiced civil and criminal defense law in private practice, and served for 12 years as a judge with the St. Joseph Superior Courts and five years with the Indiana Court of Appeals, attaining the position of chief judge with both courts.

He was near the end of his three-year term as chief judge of the appellate court when he received the unexpected offer to join the Judicial Arbiter Group Inc. in Colorado.

“We do about everything you can think of that goes through the courts,” he says about the firm, where, unique among such companies, all of the arbitrators are former judges. “If it’s a civil case in the courts, we would do it.”

Ind. Gov't. - More on "Jasper Circuit Court Judge John Potter on Thursday ordered that Linda Belork be reinstated immediately to her position as Starke County Treasurer"

Updating this ILB entry from Oct. 22nd, Terry Turner of the Gary Post-Tribune has a long story today headed "Judge absolves former Starke County treasurer of wrongdoing." Some quotes:

Jasper Circuit Court Judge John Potter released a judgment late Thursday, which said that Belork was not delinquent in her duties as treasurer.

Further, Potter said she was not properly removed, and no material fact exists that any money was missing.

He ruled that the commissioners have agreed that the money was found, and that the issue resulted from accounting errors in the Auditor’s Office. He ruled the commissioners knew this suit was groundless, since at least Sept. 6, 2011, and yet they continued prosecuting it.

Potter ordered that Belork be reinstated immediately and ordered any injunction or restraining order to be lifted.

At the emergency meeting, the commissioners acknowledged the court order, and said that they “need and desire to comply with the court order (but) without a lack of court comments,” without a bond for Belork.

Also, Potter ruled that Belork is entitled to back pay for the salary she has lost, with 8 percent interest, since August 2011. The amount of money owed to Belork for back pay, benefits and interest will be determined at a hearing. The date for the hearing has not yet been set.

Belork was forced out of her position by the commissioners, in an action which the commissioners said was justified by state statute. Commissioner Dan Bridegroom said he believes the statute still applies.

The commissioners, at the time believed they were under pressureto respond to a State Board of Accounts audit that indicated there was an alleged shortage or misappropiation of funds, of up to $1 million, in the Treasurer’s Office. They also, at the time, sought to have Belork’s bond removed, filing suit against her bond. At the time, Starke County Council president Mark Smith also ordered that all Treasurer’s Office funds be frozen.

Belork’s attorney has argued her reputation been irreparably damaged. She lost a Democratic primary nomination in which she sought to regain her post.

Ind. Decisions - "Driving For Miles With Blinker On is Not a Crime"

The Court of Appeals opinion Oct. 19th in Rodney Killebrew II v. State of Indiana was picked up today in a blog I haven't seen before, theNewspaper.com, "A journal of the politics of driving". The post is headed "Indiana: Driving For Miles With Blinker On is Not a Crime: Drivers cannot be stopped for leaving their turn signal endlessly activated." It begins:

The familiar sight of a car in the left lane with its turn signal active for miles is no excuse for police to pull the driver over or issue a ticket, the Indiana Court of Appeals ruled Friday. The state courts had never before considered this particular question until motorist Rodney D. Killebrew II brought it up as a defense to his March 3, 2011 arrest.

On that day, Killebrew had been driving down Apperson Way in Kokomo when Police Officer Chad VanCamp noticed a white Cadillac with its blinker on. VanCamp testified that he believed a Cadillac driving in a straight line with a turn signal on was a sign its driver was impaired. VanCamp conducted a traffic stop and said he detected "an overwhelming amount of air fresheners" in Killebrew's Cadillac. Killebrew replied he had just cleaned the vehicle and thought it needed the freshening. Officer VanCamp ordered Killebrew out of the car and had a drug dog conduct a search. The dog found two small bags of marijuana in the center console.

The three-judge panel took up the question of whether this traffic stop violated the Fourth Amendment. The judges looked to the text of the applicable statute to determine whether Officer VanCamp had reason to believe he witnessed a crime being committed when he saw the turn signal blinking.

"A signal of intention to turn right or left shall be given continuously during not less than the last two hundred feet traveled by a vehicle before turning or changing lanes," Indiana Code Section 9-21-8-25 and 26 states. "A person may not stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal to a person who drives a vehicle immediately to the rear when there is opportunity to give a signal."

The court determined these provisions only dealt with failure to use a signal, not overuse of a signal.

"We have not found any other statutory language expressly prohibiting Killebrew's use of his turn signal, and the state has not provided us with any," Judge Patricia A. Riley wrote for the court. "Accordingly, we conclude that the legislature did not intend the use of a turn signal through an intersection to be a traffic violation."

Updating this ILB entry, and this ILB opinion summary, both from yesterday, Niki Kelly of the Fort Wayne Journal Gazette has thorough coverage of yesterday's ruling, in a story headed "Planned Parenthood wins fight over funding."

“This is not about an abortion case,’’ said [ACLU legal director Ken]Falk, whose organization argued the case on behalf of Planned Parenthood. “This is a case about Medicaid services — non-abortion-related services — and the attempt by the state of Indiana to punish Planned Parenthood and its clients from receiving non-abortion health services merely because Planned Parenthood, without any sort of state or federal money or any Medicaid funds, also provides abortions.”

Tuesday, October 23, 2012

That is the heading of this just-issued ACLU press release that begins:

Indianapolis - Thousands of Medicaid patients in Indiana had their freedom to choose a medical provider affirmed today when the U.S. Court of Appeals for the Seventh Circuit upheld a preliminary injunction of a law that would have denied Medicaid funding to health care providers.

The American Civil Liberties Union of Indiana prevailed in the class action on behalf of its clients, Planned Parenthood of Indiana and others, including two patients. Without the injunction, HEA 1210 -- the law passed by the Indiana General Assembly in 2011 -- would have prohibited Medicaid funds from going to any entity that offered abortions, even though the Medicaid funds go to necessary reproductive health services and do not support abortion services.

Today a federal appeals court ruled in the legal challenge to an Indiana statute that would end Medicaid funding to abortion providers. The U.S. 7th Circuit Court of Appeals in Chicago agreed with the lower court that had blocked enforcement of the Indiana law, House Enrolled Act 1210. The federal appeals court today left in place a preliminary injunction pertaining to Medicaid funding that a federal judge in Indianapolis had issued last year. This means the plaintiff in the lawsuit, Planned Parenthood of Indiana, can continue to draw Medicaid funding from state taxpayers to fund its services.

However, in today’s 2-1 decision, the 7th Circuit panel reversed part of the lower court’s ruling of last year. The appeals court said the State of Indiana was within its authority to discontinue funding from two federal grants Planned Parenthood had received totaling $150,000 from the Disease Intervention Services (DIS) program. The 7th Circuit majority decision said Planned Parenthood had not shown its rights had been violated when the State made a decision about eligibility conditions for disbursing the federal block grant. * * *

Indiana Attorney General Greg Zoeller today issued this statement: “The people’s elected representatives in the Legislature decided they did not want an indirect subsidy of abortion services such as payroll and overhead to be paid with taxpayer’s dollars and so crafted this law. Although the injunction concerning Medicaid funding was not lifted, we note that the 7th Circuit found the State has the legal authority to decide how federal block-grant dollars – which are tax dollars – will be distributed. We will review this opinion more thoroughly with our clients before deciding how best to continue to defend the Indiana law,” Zoeller said.

Ind. Decisions - Supreme Court decides one today

In this case, a company hired an accounting firm to provide auditing services. Their agreement provided that any claim arising from the services would be submitted to arbitration. During the years covered by the agreement, an employee of the company committed fraud and theft, causing significant losses to the company.

The company alleged negligence, breach of contract, and unjust enrichment against the accounting firm and demanded arbitration. The arbitration panel ultimately found the accounting firm negligent and the company comparatively negligent. The company then filed the present suit, claiming the accounting firm committed deception because the documents that the accounting firm produced during the arbitration were misleading and caused the arbitration panel to find the company comparatively at fault.

We hold that, under the facts of this case, the issue underlying the deception claim is the veracity of the documents produced at arbitration, which was an issue necessarily decided by the arbitration panel. Accordingly, issue preclusion bars the company’s deception claim, and we affirm the trial court’s grant of summary judgment in favor of the accounting firm.

State Automobile Insurance Company and Meridian Security Insurance Company (collectively, “State Auto”) appeal the trial court’s order denying State Auto’s motion for summary judgment and granting summary judgment in favor of DMY Realty Company, LLP and Commerce Realty, LLC (collectively, “DMY”). State Auto raises three issues which we revise and restate as: I. Whether the language of certain pollution exclusions and endorsements contained in insurance policies issued by State Auto to DMY is ambiguous; II. Whether there exists a genuine issue of material fact precluding the grant of summary judgment in favor of DMY; and III. Whether the court erred in determining that State Auto should indemnify DMY for all of its past and future costs associated with DMY’s claim. We affirm and remand. * * *

[I] The first issue is whether the language of the pollution exclusions and endorsements contained in insurance policies issued by State Auto to DMY is ambiguous. In examining this issue, however, we note that the Indiana Supreme Court’s recent pronouncements in State Auto. Mut. Ins. Co. v. Flexdar, Inc., 964 N.E.2d 845 (Ind. 2012), reh’g denied, are dispositive. * * * [C]onsequently we conclude that the pollution exclusions and endorsements contained in DMY’s insurance policies with State Auto are ambiguous. Thus State Auto may not deny DMY the coverage it seeks based upon such language.

[II] The next issue is whether there exists a genuine issue of material fact precluding the grant of summary judgment in favor of DMY. * * *

To the extent that State Auto challenges Mundell’s expert report’s admissibility based upon the Daubert factors, we observe that the Indiana Supreme Court “has not established a specific test for the scientific admissibility of evidence pursuant to Indiana Evidence Rule 702(b)” and, although the Daubert factors can be helpful in that determination, the Court “has not mandated the application of Daubert and has chosen alternative approaches in the past.” Akey v. Parkview Hosp., 941 N.E.2d 540, 543 (Ind. Ct. App. 2011), trans. denied. * * *

Accordingly, we conclude that the court did not err when it concluded that there was no issue of material fact precluding the granting of summary judgment in favor of DMY.

[III] The final issue is whether the court erred in determining that State Auto should indemnify DMY for all of its past and future costs associated with DMY’s claim. * * *

We also find notable that State Auto in its reply brief does not reject DMY’s contention regarding the nature of the settlement, lending credence, albeit implicitly, to the notion that DMY and Indiana Farmers did in fact settle pursuant to a loan receipt agreement. Accordingly and under the circumstances, we conclude that remand is warranted for the trial court to review any settlement agreement between DMY and Indiana Farmers and consider any valid contribution or credit issues.

For the foregoing reasons, we affirm the court’s order granting summary judgment in favor of DMY and denying summary judgment in favor of State Auto, and we remand for the court to address any valid contribution or credit issue consistent with this opinion.

David Mathews appeals his convictions for public intoxication as a class B misdemeanor and intimidation as a class D felony and being an habitual offender. Mathews raises two issues which we revise and restate as: I. Whether the trial court abused its discretion by denying Mathews’s request for a mistrial; and II. Whether the evidence is sufficient to sustain his conviction for public intoxication as a class B misdemeanor. We affirm.

Calvin Merida (“Merida”) pled guilty to and was convicted of two counts of Child Molesting, as Class A felonies. He now appeals his sentence. We reverse and remand with instructions.

Merida raises two issues for our review, which we restate as a single issue: whether his sentence is inappropriate. * * *

We therefore reverse the trial court’s sentencing order and remand with instructions to revise the sentencing order to run his two thirty-year sentences concurrent to one another, for an aggregate thirty-year term of imprisonment.

RILEY, J., concurs.
CRONE, J., concurs in part and dissents in part, with opinion.

I would remand with instructions to revise Merida’s sentence such that eight years of the thirty-year sentence on count 10 would run consecutive to the thirty-year sentence on count 9 and the remainder would run concurrent, for a total executed sentence of thirty-eight years. * * *

I acknowledge that Indiana Code Section 35-50-1-2 does not specifically authorize partially consecutive sentences, but I believe that the statute should be interpreted to provide trial courts with as much flexibility as possible to tailor an appropriate sentence for each defendant based on the facts of each case. See id. at 1224 (“Indiana has never adopted a mechanical approach to sentencing, and we have not identified any inflexible system that did not raise more problems than it solved.”). Any doubts in this regard should be resolved by either our supreme court or our legislature, which is currently reviewing Indiana’s criminal code with an eye toward overhauling both its substantive and sentencing provisions. If it is determined that the statute as currently written does not authorize partially consecutive sentences, it is my hope that the legislature would amend the statute accordingly and give trial courts and appellate courts an important tool for crafting appropriate sentences in cases like this one.

In 2011 Indiana adopted a law
prohibiting state agencies from providing state or
federal funds to “any entity that performs abortions or
maintains or operates a facility where abortions are
performed.” IND. CODE § 5-22-17-5.5(b). The Hyde Amendment
already forbids states from using federal funds to
pay for most nontherapeutic abortions; Indiana has a similar ban on the use of state funds. The new law goes a
step further by prohibiting abortion providers from
receiving any state-administered funds, even if the
money is earmarked for other services. The point is to
eliminate the indirect subsidization of abortion.

Immediately after the defunding law was enacted,
Planned Parenthood of Indiana and several individual
plaintiffs filed this lawsuit seeking to block its implementation.
As an enrolled Medicaid provider,
Planned Parenthood provides reimbursable medical
services to low-income patients, two of whom are
named as plaintiffs. Planned Parenthood claims that the
defunding law violates the Medicaid Act’s “free choice
of provider” provision, which requires state Medicaid
plans to allow patients to choose their own medical
provider. See 42 U.S.C. § 1396a(a)(23). The United States,
as amicus curiae, supports this claim. Planned Parenthood
also contends that the defunding law is preempted
by a federal block-grant statute that authorizes the Secretary
of Health and Human Services (“HHS”) to make grants to the states for programs related to sexually
transmitted diseases. See 42 U.S.C. § 247c(c). Finally,
Planned Parenthood claims that the defunding law
places an unconstitutional condition on its receipt of state-administered
funds because it must choose between
providing abortion services and receiving public money.

The district court held that the first two claims were
likely to succeed and enjoined Indiana from enforcing
the defunding law with respect to Planned Parenthood’s
Medicaid and § 247c(c) grant funding. The court did not
address the unconstitutional-conditions claim. Indiana
appealed.

We affirm in part and reverse in part. A threshold
question on the two statutory claims is whether the
plaintiffs have a right of action. To create private rights
actionable under 42 U.S.C. § 1983, the statutes in question
must meet the requirements of Gonzaga University v.
Doe, 536 U.S. 273 (2002). The free-choice-of-provider
statute does. Under § 1396a(a)(23) state Medicaid plans
“must” allow beneficiaries to obtain medical care from
“any institution, agency, . . . or person, qualified to
perform the service.” This is individual-rights language,
stated in mandatory terms, and interpreting the right
does not strain judicial competence. See Gonzaga Univ.,
536 U.S. at 284.

Planned Parenthood is likely to succeed on this
claim. Although Indiana has broad authority to exclude
unqualified providers from its Medicaid program, the
State does not have plenary authority to exclude a class
of providers for any reason — more particularly, for a reason unrelated to provider qualifications. In this
context, “qualified” means fit to provide the necessary
medical services—that is, capable of performing the
needed medical services in a professionally competent,
safe, legal, and ethical manner. The defunding law excludes
Planned Parenthood from Medicaid for a reason
unrelated to its fitness to provide medical services, violating
its patients’ statutory right to obtain medical care
from the qualified provider of their choice.

The remaining claims are not likely to succeed, however,
so the scope of the injunction must be modified.
First, the block-grant statute does not create private
rights actionable under § 1983, and the district court’s
conclusion that the Supremacy Clause supplies a preemption
claim of its own force is probably wrong. In
any event, the defunding law does not conflict with
§ 247c(c), which attaches no strings to the federal money
other than a general requirement that the recipient
state spend it on programs for the surveillance of sexually
transmitted diseases. Finally, the unconstitutional-conditions
claim does not supply an alternative basis for
relief. This doctrine, sometimes murky, requires close
attention to the potentially implicated right. Here,
Planned Parenthood’s claim is entirely derivative of a
woman’s right to obtain an abortion. It is settled law
that the government’s refusal to subsidize abortion does
not impermissibly burden a woman’s right to obtain an
abortion. If a ban on public funding for abortion does
not directly violate the abortion right, then Indiana’s ban
on other forms of public subsidy for abortion providers
cannot be an unconstitutional condition that indirectly
violates the right.

The much-watched judicial retention election in Iowa is the subject of two national stories today. In 2009 the Iowa Court voted unanimously that same-sex marriage is legal in Iowa. In 2010 3 of the justices were up for retention and failed. This year another of the justices is up for retention. Have attitudes changed?

Justice Wiggins is the only justice up for retention who took part in the marriage ruling, and a robust coalition has formed around him, urging Iowans to vote to keep him on the court. * * *

The bigger threat to same-sex marriage in Iowa next month may be the battle for control of the State Senate, where Democrats hold a one-seat advantage. Republicans have suggested that they would try to get a state constitutional amendment banning same-sex marriage on the ballot if they seized the majority. Supporters of same-sex marriage argue that the matter is one of equality and best decided by the courts; schools may have remained segregated and interracial marriages illegal if those issues had been left to popular votes, they say. * * *

Justice Wiggins has declined to campaign for his seat, other than writing in The Des Moines Register that he hoped Iowans would vote to keep him but that he would not politicize the courts.

David Baker, one of the justices ousted in 2010, said they might not have made it clear enough that their ruling dealt with the civil marriage contract and did not prevent churches from choosing how to define marriage.

Advocates on both sides of the debate are looking toward this vote as a measure of Iowans’ attitudes toward same-sex marriage. Some polls suggest there has been a marked shift.

Ryan J. Foley of the AP has a long story headed "Supporters of Iowa Supreme Court justice focus on equality: Observers say result could be much closer than 2010 vote that ousted three justices." Some quotes:

Supporters of Supreme Court Justice David Wiggins are hoping that a low-key campaign stressing Iowa’s history of equality will convince voters to reject a conservative effort to oust him for approving same-sex marriage.

Wiggins’ critics are asking voters to remove him Nov. 6, claiming he and his colleagues abused their power when they struck down Iowa’s ban on gay marriage in a 7-0 ruling in 2009. They are hoping for a repeat of 2010 — when voters took the unprecedented step of firing three of the justices — but acknowledge the state’s legal establishment and liberal groups are mounting a stronger campaign for Wiggins this year. * * *

[Backers of Wiggins] said the decision is in line with Iowa’s history of being ahead of the nation in equal rights. The justices ruled that Iowa’s ban on same-sex marriage violated the state constitution’s equal protection clause. More than 4,500 gay and lesbian couples have since wed in Iowa, one of six states where the practice is legal. * * *

Wiggins’ backers note that the Iowa Supreme Court ruled in 1839 that that “no man in this territory can be reduced to slavery” in concluding that a Missouri slave who had moved to Iowa, a free state, was not a fugitive.

In 1868, the court ruled that public schools that were segregated on the basis of race were inherently unequal, 86 years before the U.S. Supreme Court ruled similarly. The next year, the court allowed the first female lawyer in the nation, ruling that women cannot be denied the right to practice.

Wiggins has not directly campaigned, saying he’s following the long-standing tradition in which Iowa justices do not raise money. But in appearances at civic groups, schools and churches that he bills as educational, he has mentioned those rulings to argue that what the court did in 2009 was not a stretch.

“He was amazing,” said Rev. Patti Aurand of First Congregational United Church of Christ in Mason City, which invited Wiggins to speak on a recent Sunday. “I learned more about the Iowa state constitution than I had any idea that was out there. To find out our role of equality! Iowa has been a forerunner in those issues since the 1800s, which is pretty incredible.”

Ind. Courts - "Atheist Group Argues In Court For Right To Perform Weddings"

A secular organization, the Center for Inquiry, argued in federal court Monday that Indiana’s marriage statute is unconstitutional because it does not allow non-religious organizations to marry people.

Under Indiana statute, marriage is essentially a two-step process. The state issues a marriage license and then it is solemnized. The state’s marriage statute spells out who can solemnize, including religious organizations and some elected officials.

Solicitor General Thomas Fisher says the purpose of the statute is for the state to regulate marriage while accommodating religious groups and providing alternatives for non-religious organizations. * * *

The American Civil Liberties Union’s Indiana branch is handling the case for the Center for Inquiry. ACLU legal director Ken Falk says there is a neutral principle that other courts have regularly used.

“There’s a difference between chess club and atheism,” he says. “There’s a difference between a life philosophy that fulfills the function of what a religion does for a religious person and something that doesn’t.”

While questioning the attorneys, federal judge Sarah Evans Barker said she believed the statute was generic enough that it could include the CFI under a broad definition of religious organization. But CFI asserts it is not a religious group because it has no belief in a higher power or supreme being. Barker did not set a specific timetable for her ruling.

Monday, October 22, 2012

Ind. Gov't. - "Jasper Circuit Court Judge John Potter on Thursday ordered that Linda Belork be reinstated immediately to her position as Starke County Treasurer"

The ILB has posted a number of entries on Starke County Treasurer Linda Belork and her removal from office, beginning with this one from August 12, 2011, headed "Starke County commissioners remove treasurer from office," and most recently, from Jan. 12, 2012, this one headed "More on: Judge Rules in Linda Belork Case."

Today, from K99.3FM, "The Voice of the KankakeeValley," "Anita" reports in a story headed "Linda Belork Expected to Resume Treasurer Duties Today":

Jasper Circuit Court Judge John Potter on Thursday ordered that Linda Belork be reinstated immediately to her position as Starke County Treasurer. According to the order, Belork was wrongfully removed from office after alleged discrepancies were found in the treasurer’s accounts. The judge found that it was an accounting error of the auditor.

Belork is expected to be in the Starke County Treasurer’s office when the doors open this morning at 8 a.m. in the Starke County Annex Building. The Starke County Commissioners said that Kasey Clark, who was sworn in as the interim treasurer when Belork was removed from office, will fill a temporary county position until Jan. 1. She is the only candidate on the General Election ballot for Starke County Treasurer so she will resume her duties in January.

Any further settlement issues between the commissioners and Belork will need to be done in remediation and if the issues cannot be resolved, the parties will meet again in Jasper Circuit Court to resolve them.

Starke County Commissioner Kathy Norem stated, “We are disappointed that the outcome of this case did not meet our expectations. We hold each office holder accountable for the responsibilities of their office. In this case, we felt that our actions were warranted because these responsibilities were not being effectively met causing an intolerable lack of service for the tax payers of Starke County. We will continue to hold all office holders to this standard of service and move forward in the management of operations for Starke County.” [ILB emphasis]

But that is not all. "Anita" also has a newer story, headed "Starke County Treasurer’s Office Closed Until Further Notice":

[ILB emphasis]The Starke County Commissioners held an emergency meeting this morning where Commissioner Dan Bridegroom made a motion to acknowledge that Linda Belork is the Starke County Treasurer but she can not fully serve in that capacity because a surety bond is not in place at this time and they must close the Treasurer’s Office until further notice.

“The only option that would give us, I feel, to close the office at this time. Yes, she is Treasurer, but we cannot allow her to operate the office because of the liability issues,” stated Bridegroom. * * *

All parties are attempting to get the Treasurer’s Office open to serve the public as quickly as possible. For now, if you have a tax payment, you may drop it off in the drop box outside of the Treasurer’s Office until the office is reopened.

The ILB has also found this Oct. 20th story by "Ben" that gives some recent background:

A decision has finally been reached in the case against Linda Belork, former Starke County treasurer. The attorney for the Starke County Commissioners, Martin Lucas, told Jasper Circuit Court Judge John Potter that the commissioners were faced with a serious problem when the funds were reportedly misappropriated in the treasurer’s office according to the State Board of Accounts. He said the commissioners acted according to statute in removing her from office and filing suit against her bond.

Belork’s attorney, Ethan Lowe, argued that the commissioners knew one week after the report came in for the misappropriated funds that the money was not stolen or lost. He said the error lies in the payroll department in the auditor’s office, not the treasurer’s office. Lowe also claimed that because of the commissioners actions, Belork’s reputation in the community has been ruined.

Potter filed his order on Thursday, having found that Belork was not delinquent in her duties as treasurer. Further, Potter said she was not properly removed, and no material fact exists that any money was missing. He said the commissioners themselves agree that the money was found and that the issue stemmed from accounting errors in the auditor’s office. The commissioners knew this suit was groundless since at least Sept. 6, 2011, Potter said, and yet they persisted in prosecuting it.

Therefore, Potter has ordered that Belork be reinstated immediately and any injunction or restraining order against her is lifted. Further, Belork is entitled to back pay at her salary with eight percent interest since Aug. 2011. The amount of money owed to Belork for back pay, benefits, and interest shall be determined at an evidential damages hearing, the date for which has not yet been set.

Lowe said his client is still evaluating whether or not other damages are appropriate, and the parties will undergo a mediation process in order to come to an agreement. In the meantime, however, Belork is expected to return to office Monday morning.

Ind. Courts - "Incumbent judges merit re-election"

That is the headline to a detailed editorial today in the Evansville Courier & Press. Some quotes:

In Vanderburgh County, it is rare anytime a sitting judge is challenged in an election, and yet, this November, we have two incumbent judges facing opposition from attorneys running highly energetic campaigns. In one race, Chief Superior Court Judge Mary Margaret Lloyd is under challenge from Keith Wallace, an adoption specialist, and in the other, Juvenile Court Judge Brett Niemeier has been taken on by Barry Blackard, a young public defender who has blanketed the county with advertising. * * *

We believe that in each case, the incumbent merits re-election.

Judge Lloyd was the first female ever elected to the bench in Vanderburgh County, beginning in the year 2000, and earlier this year, she became the first female chief judge of the court. One of her first tasks as chief judge was to oversee the reorganization of the court, a change which has fewer of the judges rotating through its divisions. Two judges are now assigned to family law cases and two judges are assigned to civil cases.

It is the family court where Wallace would seek to make changes if elected. Indeed, he says that it was his decision to run for the office that prompted Judge Lloyd to move ahead on the changes to Superior Court. We suspect that Wallace gives himself credit for the changes that he does not deserve.

Lloyd has proved a respected jurist in the Vanderburgh court and deserves to be re-elected.

In the case of both Lloyd and Juvenile Judge Niemeier, each has been involved in the creation of numerous court programs that reach out to help people unfortunate enough to encounter the courts.

Niemeier, also on the court since the year 2000, said he has created 10 new programs at no cost to the taxpayers. Rather, those costs are covered through grants and in cooperation with nonprofit groups. Among those programs is the Teen Court, a family connections program in which teen and parents deal with bad decision-making, a substance treatment program, an anger management program and many more.

Clearly, it is no longer the old juvenile court system once found in many counties where justice was meted out with little attention to long-term change among juvenile delinquents.

Judge Niemeier runs good court programs, such that we see no reason to replace him with inexperience.

Law - "The ‘Perversion Files’ Come to Light"

The Boy Scouts of America has known for nearly a century that scout leaders were preying on boys under the its protection. Yet for most of those long years, it kept what it knew about scout leaders who were sexual predators locked away in secret “perversion files.”

The Scouts’ excuse was that the files, compiled at least since the 1920s, were a system of internal controls, to ensure that known abusers could not rejoin scouting. No doubt this helped to protect many boys, but in many other instances the system failed, and it kept failing. The Scouts had no right to protect these criminals from the police, from parents and even from many troop leaders. They serve as yet another example of the disaster of institutional secrecy, of the danger when officials decide that an organization deserves protecting more than a child.

Now a light is finally being shined on the Boy Scouts’ failure — not because the institution had a change of heart, but because of orders from judges. In the latest case, in Portland, Ore., a law firm that won an $18.5 million civil judgment in an abuse case fought all the way to the Oregon Supreme Court to make public the “perversion files,” also known as the “ineligible volunteer” files.

It posted a cache of them online on Thursday. The files cover the period from 1965 to 1985, more than 15,000 pages detailing accusations against 1,247 scout leaders. In a separate case dating to the 1980s, a Sacramento lawyer persuaded a judge to order the release of another trove of files; an index of those cases, involving nearly 1,900 accused abusers from 1971 to 1991, was shared with The Los Angeles Times last year and has also been posted online. * * *

The Boy Scouts say they have adopted many strong reforms and are now a model for effectiveness in protecting children, which may be true. But for that, parents and scouts can thank the courage of victims and the persistence of lawyers and journalists, not the goodwill of an organization that minimized the problem and fought tenaciously for decades to keep its secrets hidden.

The files are surely the tip of an iceberg, says Gilion Dumas, a lawyer with the firm that posted the Oregon files, because the Boy Scouts kept no records on how many files were created or lost and because many cases were never reported, since most families, troops and sponsoring organizations had no idea the files existed, or how to use them.

For an organization that extols trustworthiness, these files lay bare an appalling dissonance. The Boy Scouts battled to the Supreme Court to protect their right to purge gay and lesbian leaders and to exclude gay boys, insisting that openly gay people were bad role models. It bent to bigotry while hiding sexual predators.

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

City of Indianapolis v. Rachael Buschman is a June 26, 2012 opinion (3rd case), where the COA reverses the trial court ruling that Buschman's tort claim notice was sufficient: "The trial court improperly granted summary judgment in Buschman’s favor on the issue of whether her notice was sufficient to inform the City of a potential personal injury claim. We reverse and remand for further proceedings."

Ohio Farmers Insurance Company and S.C. Nestel, Inc. v. Indiana Drywall & Acoustics, Inc. is a May 22, 2012 NFP COA opinion where appellant's petition to transfer was denied and appellee's was granted by the Supreme Court.

Ind. Gov't. - Former Democratic state representative opines against early voting

This story by Jill Disis in today's Indianapolis Star is headed "Bus loads of Indianapolis church-goers turn out for early voting today." Some quotes:

The line at the Marion County clerk's office on Sunday snaked out of the office and around the lobby, as several hundred people, many dressed in their Sunday best, waited to cast their vote two weeks before Election Day.

Many came straight from church, by the bus load, for a chance to cast a ballot along with other members of their churches.

The effort was an organized campaign by several local groups to drive up voter participation by using a faith-based approach focused on bringing voters to the polls before or after Sunday church services. * * *

More than 1,000 voters came out Sunday during what has become a record-breaking election turnout season in Marion County. The clerk's office reported that nearly 9,000 people came out for early in-person voting this year within the first two weeks of the program, which began on Oct. 8 (including Sundays). At the same point in 2008, the last presidential election, about 6,000 people had voted early in Marion County about two weeks before the election.

"It exceeds our expectations," said Angie Nussmeyer, spokeswoman for county clerk Beth White, who also said this was the earliest that they've offered early voting on Sunday. "We've had a great turnout in early voting. We've staffed up to accommodate our demands."

In contrast, yesterday's IndyStar included an opinion piece by former Democratic state representative David Orentlicher, warning of the dangers of early voting. Some quotes:

On balance, we should worry about early voting. Early voting risks "under-informed" voting. As this year's presidential debates have reminded us, much can happen in the final weeks of a campaign, and the early voter is not able to account for late developments in choosing whom to support. * * *

At the initial stages of campaigns, many voters are uncertain about a candidate's positions and often may misunderstand them. As campaigns progress, the public's knowledge improves, with the substantial gains in information occurring between late September and late October when the media and other sources of information intensify their coverage.

Very likely, the under-informed early voter is a particular problem for challengers in low-profile races. Incumbents typically begin their campaigns with a significant advantage because of their name recognition and the connections developed with their constituents while serving. Their opponents, on the other hand, are more reliant on the campaign to mobilize support. Hence, a shortened campaign can easily disadvantage challengers more than incumbents.

Lack of information shows up in other ways. For example, early voters have less knowledge about referendums or other ballot questions and therefore are less likely to cast a vote on ballot measures.

Of course, we need to do more to promote greater voter turn-out. Too many people never make it to the polls. But as we remove barriers to voting, we should not discourage well-informed voting.

A special Indiana Court of Appeals hearing in the city today likely will draw a number of lawyers and others in the legal community – but voters have a reason to attend, too.

Three of the four appeals court judges who face a yes/no retention vote next month will be on the panel hearing the appeal of an Elkhart man, James Young, who was convicted of domestic battery and strangulation. * * *

All three judges face the retention vote: Paul Mathias, a Fort Wayne native and former Allen Superior Court judge; Nancy Vaidik, a former Porter County Superior Court judge; and Michael Barnes, former St. Joseph County prosecutor.

The fourth judge facing the retention vote is John Baker, a former Monroe County judge and a 23-year veteran of the appeals court – making him the veteran of the court.

ILB: BTW, Judge Baker will not be on the ballots of Fort Wayne voters, as only voters in the southern third of Indiana (1st Judicial District) will see his name of their ballots.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (10/22/12):

Wednesday, October 24th

9:00 AM - Joseph A. Davis v. Herbert Simon and Bui Simon (49S04-1208-CT-498) - When Simon and his wife sued Davis, a California attorney, for defamation and false light publicity based on a statement Davis made during a phone call with an Indianapolis-based news organization, Davis moved to dismiss, and the Marion Superior Court denied the motion to dismiss. The Court of Appeals reversed, concluding that the trial court lacks personal jurisdiction over Davis because he did not expressly aim his conduct at Indiana. Davis v. Simon, 963 N.E.2d 46 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal

ILB: This is a 26-page, Feb. 29, 2012 COA opinion, where the question is whether the Simons have jurisdiction to sue Mr. Davis (of California) in Indiana. "Joseph A. Davis appeals the trial court's denial of his Motion to Dismiss for Lack of Personal Jurisdiction, or in the Alternative, on Grounds of Forum Non Conveniens, in favor of Herbert and Bui Simon." The trial court denied Mr. Davis' motion to dismiss. The COA panel here reverses, 2-1.

9:45 AM - Whiskey Barrel Planters Co., Inc. v. American GardenWorks, Inc. (04S03-1209-PL-503) - After purchasing "substantially all" the assets of Whiskey Barrel Planters, American GardenWorks filed a complaint alleging Whiskey Barrel Planters and its two shareholders failed to turn over certain assets included in the sale. Whiskey Barrel Planters filed counterclaims for conversion and replevin. The Benton Circuit Court denied Whiskey Barrel Planters' motion for partial summary judgment. After a trial, the court entered judgment for American GardenWorks. The Court of Appeals reversed, concluding the sale of "substantially all" the assets of Whiskey Barrel Planters did not include season football tickets, shareholder loans, or personal property, and that the shareholders were entitled to recover any personal property converted by American GardenWorks. The Court of Appeals remanded for further proceedings on the attorney's fees awarded to American GardenWorks. Whiskey Barrel Planters Co., Inc. v. American GardenWorks Inc., 966 N.E.2d 711 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

10:30 AM - State of Indiana ex rel Indiana Supreme Court Disciplinary Commission v. Derek Farmer (94S00-1103-MS-165) - The Indiana Supreme Court Disciplinary Commission filed a verified petition under Indiana Admission and Discipline Rule 24 to enjoin the Respondent, Derek A. Farmer, from engaging in the unauthorized practice of law. Farmer filed a return opposing the petition. A Commissioner appointed by the Court held a hearing and made factual findings, after which the parties filed briefs responding to the Commissioner’s findings. The Court has granted a motion for oral argument.

Next week's oral arguments before the Supreme Court (week of (10/29/12):

9:00 AM - Ronald B. Hawkins v. State of Indiana (20S03-1208-CR-499) - Hawkins was tried in absentia and without counsel in the Elkhart Superior Court. He was found guilty of two counts of non-support of a dependent child as Class C felonies, and sentenced via videoconference to consecutive terms of four years but with all suspended and to be administered through a community corrections program. A divided Court of Appeals affirmed in part and reversed in part, finding that his due process rights were not violated by the trial or absence of counsel, that he had waived for appellate review argument relating to sentencing via videoconference, and that consecutive sentences were not an abuse of discretion, but that one of the felonies must be reduced to a Class D felony. Hawkins v. State, (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: This is a 2-1, July 3, 2012 COA opinion (5th case), where the dissent writes in part: "I respectfully dissent from the majority’s conclusion that Hawkins knowingly, intelligently, and voluntarily waived his right to counsel. Because I believe that the facts in this case are readily distinguishable from the facts in Jackson and because of the importance of an attorney for a fair proceeding, I would reverse the trial court on this issue."

9:45 AM - In re Prosecutor’s Subpoena (S.H. v. State) (73S01-1209-CR-563) - At a time when no charges were pending and no grand jury investigation had begun, the Shelby Superior Court quashed subpoenas seeking the testimony of the parents about injuries to their infant, but later granted the State’s request that the parents be given use immunity and ordered to testify. The Court of Appeals affirmed the trial court in S.H. v. State, 969 N.E.2d 1048 Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

S.H. and S.C. (collectively, “Parents”) appeal a trial court order granting the State’s petition to compel their testimony by providing use immunity. Parents argue a prosecutor may not grant use immunity when there is no grand jury proceeding and the persons whose testimony is sought have not been charged with a crime. * * *

While Parents’ argument is persuasive, we cannot reconcile the result they advocate with our Indiana Supreme Court’s statement that a prosecutor has the same ability to accumulate evidence as does a grand jury. We must agree with the State that the legislature’s explicit reference to grand jury proceedings in Ind. Code § 35-34-2-8 cannot be read to restrict the right of a prosecutor to seek use immunity when prosecution is initiated by means of an information rather than an indictment. Nor could the legislature have intended that prosecutors have fewer investigative tools before deciding to bring charges than they do after charges are brought. We accordingly affirm the trial court.

This week's oral arguments before the Court of Appeals (week of 10/22/12):

Monday, October 22nd

10:30 AM - James O. Young v. State of Indiana (20A04-1112-CR-699) - James Young appeals his conviction for Class D felony domestic battery and Class D felony strangulation following a jury trial. Young’s wife, the victim, did not testify at trial, but two firefighters and a police officer who had spoken with her at or near the time of the incidents involved were allowed to testify concerning the substance of the statements she made to them.
Young presents the following issues for review on appeal: (1) whether the firefighters’ and police officer’s testimony regarding the victim’s statement to them was a violation of the Confrontation Clause within the Sixth Amendment of the Constitution of the United States or permissible questioning during an ongoing emergency; (2) whether the trial court abused its discretion in concluding that the victim’s statement to the police officer, more than 45 minutes after the incidents, was an excited utterance; and (3) whether there was sufficient evidence to prove that Young committed the offenses in a child’s physical presence so as to elevate the domestic battery offense to a Class D felony. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes.
. [Where: Allen Superior Courtroom No. 1
715 S. Calhoun Street
Fort Wayne, Indiana]

Tuesday, October 23rd

10:00 AM - Kenneth S. Tipton v. State of Indiana (47A01-1201-CR-4) - Kenneth Tipton was convicted of criminal recklessness after he shot at a house during a standoff with police He argues on appeal the evidence was insufficient to convict him because that offense requires proof there was a risk of injury to a person and nobody was in the house when he shot at it. The Scheduled Panel Members are: Judges Baker, May and Sr. Judge Shepard. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 10/29/12):

Tuesday, October 30th

11:00 AM - Paul H. Gingerich v. State of Indiana (43A05-1101-CR-27) - Gingerich appeals his conviction following a plea of guilty pursuant to a plea agreement for conspiracy to commit murder as a class A felony. Gingerich asserts that the juvenile and trial courts abused their discretion in failing to order a competency evaluation based upon developmental immaturity; that the juvenile court abused its discretion by authorizing the delinquency petition to be filed, by denying Gingerich’s request for a continuance of the waiver hearing, and by waiving jurisdiction; and that the waiver provisions in the plea agreement are unenforceable. Additionally, the State argues on cross-appeal that Gingerich’s appeal should be dismissed because he waived his right to appeal in his plea agreement and by pleading guilty. The Scheduled Panel Members are: Judges Baker, Kirsch and Brown. [Where: Indiana Supreme Court Courtroom (WEBCAST)]

Wednesday, October 31st

1:00 PM - Jerry Vanzyll v. State of Indiana (34A02-1111-CR-1050) - As a result of a narcotics investigation by the Kokomo Police Department, Vanzyll was arrested and convicted of several methamphetamine-related offenses and resisting law enforcement. Specifically, Vanzyll resided in a home in which police officers discovered a methamphetamine lab pursuant to a search warrant. When Kokomo police officers initially attempted to gain access to the residence, Vanzyll opened the back door, saw the officers, ran back into the house and shut the door. The officers ordered Vanzyll to return to the back door, and he eventually complied, at which time he was arrested.
Vanzyll raises three issues on appeal. First, he challenges the admission of incriminating statements he made to corrections officers while he was in custody at the Howard County Jail. Next, Vanzyll argues that the evidence that he returned to his residence and closed the back door after noticing KPD officers outside and failed to immediately return to the back door of his residence when ordered to do so by the police is insufficient to prove that he committed the criminal offense of resisting law enforcement. And, finally, Vanzyll argues that the evidence is insufficient to support his conviction for dealing methamphetamine because the State presented no evidence that there was an active methamphetamine lab in his residence on the date of the search. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes.
[Where:Seeger Jr.-Sr. High School, Fine Arts Center, 1222 South St., Road 263, West Lebanon, Indiana

Thursday, November 1st

10:00 AM - Thomson Inc., N/K/A Technicolor USA, Inc., v. Insurance Company of America, et al (49A05-1109-PL-470) - This appeal arises from a declaratory judgment action filed by Thomson against its liability insurers to obtain insurance coverage for a class action toxic tort case pending in Taiwan. In August 2011, the trial court granted partial summary judgment in favor of Thomson as to certain coverage issues and certified its order as a final judgment pursuant to Indiana Trial Rule 56(C). Thomson and the insurers (XL Insurance America, Inc., and Century Indemnity) each filed a notice of appeal from that order. The insurers subsequently filed a motion to dismiss the appeal, which essentially challenges the propriety of the trial court’s certification of its order. Oral argument is being held solely on the insurers’ motion to dismiss. The Scheduled Panel Members are: Judges Riley, Bailey and Crone. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

Sunday, October 21, 2012

Ind. Courts - More on: "Merrillville Town Court shuts the book on new civil cases"

Re the ILB post from yesterday, a reader writes: "Can they really declare they won't take any [new] civil filings?"

I don't know the answer. The Roanoke Town Court rules (see this post from Oct. 19th) are on line and have been approved by the Supreme Court, but I'm not seeing any separate local rules for Merrillville's Town Court (they would be on the Lake County Courts page). The Lake County local rules re assignment of cases (beginning on p. 101) do not really deal with town court civil cases.

Merrillville does have a webpage for its Town Court. It still says civil filings and states that its jurisdiction is:

Real Estate disputes within Lake County, Indiana

Contractual disputes within Lake County, Indiana

Personal injury disputes within Lake County, Indiana

Evictions within Lake County, Indiana.

IC 33-35 deals with city and town courts. IC 33-35-2 covers jurisdiction of these courts. Unfortunately, I can't determine if any of the provisions applies to the Merrillville town court because the statutes are written in terms of population parameters, and I don't have access to an annotated version.

IC 33-35-5-7 names the city and town courts where the judge must be an attorney, and includes: "(5) A city or town court located in Lake County."

Finally, some readers may recall that this town court was in the news earlier this month. This Oct. 11, 2012 ILB post quotes from a Gary Post Tribune story headed "Former Merrillville Town Court clerk enters guilty plea in fed court."

Ind. Gov't. - Two major state papers today endorse Greg Zoeller for another term as Attorney General

A series of high-profile cases, a willingness to jump into the political fray and an emphasis on keeping the public informed have made Greg Zoeller an unusually prominent Indiana attorney general.

Though his activism sometimes seemed to border on using the law for partisan purposes, Zoeller has repeatedly displayed a respect for the law over politics and, perhaps most of all, a determination to make sure Hoosiers and their elected officials are well-represented in court. Though his Democratic challenger, Kay Fleming, is a competent attorney with a public-service background and would likely make a good attorney general, Zoeller has earned a second term.

Ind. Gov't. - "Lottery bids made public … but unreadable"

INDIANAPOLIS – Hoosier Lottery officials made public the two bids to take over key operations of the system.

But the nearly 1,700 pages of documents are so heavily redacted that Hoosiers still have no idea how the new manager plans to hit lofty revenue targets. The bids also weren’t placed online for citizens to read. They are only available in a downtown Indianapolis conference room.

And despite finalizing the 15-year contract with GTECH Indiana LLC on Friday – and sending out a news release about it – the lottery has yet to release that agreement. * * *

In comparison, when Indiana leased the Indiana Toll Road – a much more complex transaction – reams of non-redacted documents were posted on the state website for review and are still accessible today.

Saturday, October 20, 2012

Ind. Courts - "Merrillville Town Court shuts the book on new civil cases"

Reminiscent of this story yesterday headed "Roanoke town court will no longer handle traffic tickets," the NWI Times' Chas Reilly reported in a story dated Oct. 18th that:

Civil cases have put a strain on Merrillville's Town Court and — as a result — no new civil cases will be accepted.

Merrillville Town Court Judge Gina Jones said judgments in civil cases the last several years, and people associated with civil cases are constantly pulling resources from the Town Court.

Instead of seeking a larger staff to handle operations of the civil division, Jones decided the Town Court will will address the situation by not taking new civil cases. * * *

Jones said a $139 fee is charged when civil cases are filed, and it's the only fee associated with civil cases. Merrillville Town Court can't increase the fee or charge new fees for services the court provides for civil cases, she said.

Fink said many civil cases filed in Merrillville Town Court aren't from Merrillville residents.

Jones said some Town Court systems in other municipalities don't have a civil division, so cases from other communities have been filed in Merrillville.

Ind. Gov't. - "When to Call Your Elected Representatives for Help"

Ron Lieber's "Your Money" column in the Saturday NY Times is about the areas where the staff of your U.S. Senator or Congressman may be able to offer a lot of help. A few quotes:

Every one of them has employees who do what is known as constituent service, helping people with thorny problems that may involve a federal agency. Most often, they are trying to sort out Social Security problems, federal disability filings, Internal Revenue Service headaches, veterans’ benefits and mortgage issues. Immigration requests involving small-business employees and newly married couples are common, too.

These staff members often refer to their efforts on your behalf as casework and treat it as a social worker would, keeping files on each person who seeks help. “When we hire new workers, I tell them that the only difference between customer service and constituent service is the way you spell it,” said Mike Cantwell, the district director for Representative Steve Chabot, Republican of Ohio.

Ind. Courts - More on: New Justice Steven David retention website

INDIANAPOLIS (AP) — An Indiana Supreme Court justice facing opposition over a ruling that provoked a public uproar has set up a campaign website to fight for his seat on the state's highest court.

Justice Steven David said Friday he decided to actively campaign because judges "have to be able to make decisions independent of political fallout" as a third, equal branch of government. * * *

Charles Geyh, professor at Indiana University's Maurer School of Law, said he did not know of any other Indiana justice who had campaigned to "fend off opposition."

Justices in other states have faced similar challenges and even lost their seats over unpopular rulings. Three Iowa justices lost retention votes in 2010 after a ruling that legalized gay marriage, and another justice is being challenged this year. Three Florida Supreme Court justices are being targeted by Republicans and other conservatives who accuse them of "judicial activism," including a ruling in 2003 that ordered a new trial for a convicted killer who had been sentenced to death. The U.S. Supreme Court set aside the ruling.

David, who was appointed by Gov. Mitch Daniels in 2010, said he obtained permission from the state's judicial ethics panel before launching the campaign website earlier this month. An online registry shows the website was privately registered Oct. 4 by Arizona-based Domains By Proxy, LLC.

The ILB has received this email from a reader:

It seems like the judicial canon only allows him to create a campaign committee. Then I assume that committee could create a website. It is clear from the content, though, that it is his website and he is encouraging a retention vote.

The reference is to CANON 4, and particularly CANON 4.4, quoted in this post earlier today.

My favorite story of the day, on the front page of this morning's Indianapolis Star, reported by Will Higgins and headed "Former POW, attorney, adventurer and Indiana Gov. Edgar Whitcomb to sell 144-acre property to state." The long story begins:

Edgar Whitcomb — POW, attorney, adventurer and Indiana’s governor from 1969 to 1973 — is selling his 144 acres overlooking the banks of the Ohio River to the state at a huge discount.

State officials declined to release a sale price, but DNR spokesman Phil Bloom said the amount is below the property’s assessed value, which is $135,400.

The 73-page opinion is in the case of John Doe, et al. v. State of Nebraska. The Sentencing Law Blog quotes from it here.

ILB: I looked for references to the Indiana opinion. Here is what the Nebraska opinion has to say, at pp. 36 and 37 about Indiana's Doe case:

I am aware of Doe v. Prosecutor,(S.D. Ind. 2012)(holding that Indiana’s ban on accessing social networking sites, instant messaging services, and chat room services by certain sex offenders did not violate First Amendment). With respect, and for numerous reasons, I am not persuaded by that decision. I will highlight only one point to illustrate my view that the Indiana judge’s reasoning throughout the opinion is weak.

Central to the judge’s ruling was a curious statement. The judge wrote that “Mr. Doe’s argument is important for what it does not say. Tellingly, Mr. Doe never furnishes the Court with workable measures that achieve the same goal . . . .” (emphasis in original). Setting to one side the dubious proposition that a plaintiff making a First Amendment challenge is obligated to inform the state how to write a statute in conformity with the Constitution, there is a very easy answer to the judge’s rhetorical flourish. That is, the constitutional response to the judge’s concern is to narrow the statute to those who have preyed upon children using the banned sites.Plainly put: Concentrate on demonstrated risk rather than speculating and burdening more speech than is necessary — use a scalpel rather than a blunderbuss. For reasons that are unclear, the judge wholly ignores this seemingly obvious point.

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

On March 3, 2011, Police Officer Chad VanCamp (Officer VanCamp) of the Kokomo Police Department was traveling northbound on Apperson Way in Kokomo, Indiana, when he observed a white Cadillac traveling southbound. The Cadillac had its turn signal activated but continued through an intersection without turning. Officer VanCamp thought that the driver might be impaired, so he initiated a traffic stop. * * *

Because we find that Officer VanCamp’s traffic stop of Killebrew was not
justified based on a traffic violation, reasonable suspicion of criminal activity, or the
community caretaking function, we conclude that the seizure violated the Fourth
Amendment and the trial court abused its discretion in admitting the marijuana evidence
obtained in the course of the unlawful search. Furthermore, the State was required to
prove that Killebrew “knowingly or intentionally possess[ed] (pure or adulterated)
marijuana, hash oil, hashish, salvia, or a synthetic cannabinoid” in order to convict him of
possession of marijuana as a Class A misdemeanor. The State did not present any
evidence of lawfully obtained marijuana, so we reverse Killebrew’s conviction for
possession of marijuana, a Class A misdemeanor. I.C. 35-48-4-11.

CONCLUSION
Based on the foregoing, we conclude that the trial court abused its discretion when
it admitted evidence obtained pursuant to an illegal traffic stop. We reverse Killebrew’s
conviction for possession of marijuana, a Class A misdemeanor, I.C. § 35-48-4-11.

Alton Neville appeals his convictions and sentences for murder and carrying a handgun without a license. On appeal, Neville argues that fundamental error requiring reversal of his convictions occurred due to prosecutorial misconduct (1) during voir dire when the prosecutor commented on the possibility of a false conviction, and during closing argument when the prosecutor (2) vouched for the witnesses; (3) mischaracterized the evidence; (4) argued inconsistent facts; (5) presented facts not in evidence; and (6) inflamed the passions and prejudices of the jury. He also asserts that fundamental error occurred due to the improper admission of certain evidence. Finally, he contends that his fifty-five year aggregate sentence is inappropriate.

We conclude that the prosecutor improperly presented facts not in evidence and improperly inflamed the passions and prejudices of the jury, but that the improper comments did not rise to the level of fundamental error. We further conclude that certain evidence was improperly admitted but did not result in fundamental error. Finally, we conclude that Neville has failed to carry his burden of persuading us that his sentence is inappropriate. Accordingly, we affirm.

Law - "Boy Scout 'perversion files' reveal South Bend judge may have been involved in cover-up"

Updating this Sept. 16th ILB entry quoting an LA Times story headed ""Over two decades, the Boy Scouts of America failed to report hundreds of alleged child molesters to police and often hid the allegations from parents and the public,"ABC News has this story today, dateline South Bend, that begins:

After a legal battle lasting for years, an Oregon based law firm released over 14,000 documents detailing alleged abuse reported within the Boy Scouts of America on Thursday.

Some of the cases in the so-called "perversion files" took place in South Bend.

In one case file dating back to 1970, Judge Robert A. Grant of the United States District Court in Northern Indiana appears to have taken part in covering up a case involving a local scout official. The Federal Courthouse in South Bend is now named after Grant.

Ind. Courts - More on: Libertarian running for Marion Superior Court?

Updating this ILB entry from last evening, the Indianapolis Bar Association sent out a clarifying email to members late this morning. It reads:

You likely have received from the Indianapolis Bar Association Judicial Excellence Committee a judicial survey for Jeffrey H. Knoop for the position of Marion Superior Judge. Earlier this year, the Committee received a formal request from the Libertarian Party to include Mr. Knoop in the judicial survey process conducted by the Committee. The supplemental survey you received was responsive to that request. It is the policy of the Committee to include self-identified candidates in its judicial surveys even if they later withdraw from the electoral process. The Committee is now aware that Mr. Knoop does not appear on this year’s ballot for the position of Marion Superior Judge. Therefore, the Committee will not be publishing the results of this supplemental survey.

The Committee apologizes for any confusion about the purpose of this supplemental survey.

Ind. Courts - New Justice Steven David retention website

Indiana Supreme Court Justice Steven David, who is running for retention by the voters in the November general election, now has a website, JusticeStevenDavid.com. This is a first in Indiana, at least as far as the Supreme and Appellate Courts are concerned.

There have been several stories in the press this month stating that Justice David is facing a retention challenge. As noted in this Oct. 3rd ILB entry:

ILB: The Indiana Code of Judicial Conduct, CANON 4's overall title reads: "A Judge or Candidate for Judicial Office Shall Not Engage in Political or Campaign Activity That is Inconsistent with the Independence, Integrity, or Impartiality of the Judiciary."

However, Rule 4.4 of the Canon permits "a candidate for retention who has met active opposition, [to] establish a campaign committee to manage and conduct a campaign for the candidate."

The ILB has not yet seen any reports of creation of a Justice David campaign committee and if it is mentioned on the new website, I missed it.

Ind. Courts - Supreme Court sets date for legislative fines case

The Indiana Supreme Court has set oral arguments in the matter for Jan. 3 at 9 a.m. That is almost a year after initially getting involved and merging two related cases.

The case revolves around fines issued by Republican House Speaker Brian Bosma to Democratic lawmakers in the 2011 and 2012 sessions who purposely boycotted the session to avoid giving the chamber a quorum to do business.

The Democrats aren't contesting the ability of Bosma to levy the fines, but believe it was unlawful for State Auditor Tim Berry to unilaterally withhold the fines from expense and salary pay.

Ind. Law - More on: Rochester attorney has blog, "Lawyers with Troubles"

Updating this Sept. 13 ILB post, Ted Waggoner's new blog is going strong, with new posts about once a week. Take a look. I've added the link to my right column, under the heading "Some Good Law-Related Blogs."

Traffic violations in Huntington County will now be filed exclusively through the Huntington Superior Court and no longer through the Roanoke town court, Huntington County Prosecutor Amy Richison has determined.

Richison says she made the decision for two reasons. The first reason is to bring Huntington County into compliance with an Indiana Supreme Court ruling covering assignment of cases to specific courts.

The second reason concerns the fact that the Huntington Superior Court and Roanoke town court issue different fines for the same traffic violations. Because of this, a motorist who was stopped by a police officer who files the violation through the Roanoke town court ends up paying a higher fine than a motorist who was stopped for the same violation by an officer who files the violation through the Huntington Superior Court. * * *

The decision will likely result in the closure of the Roanoke town court, which relies on the revenue from fines assessed during traffic violations to stay in operation.

ILB: What "Indiana Supreme Court ruling covering assignment of cases to specific courts?" ILB Guesses that means the Huntington County local rules and the Supreme Court order approving them.

Updating this ILB entry yesterday on the 2nd Circuit ruling, I been anticipating SCOUSblog's Lyle Denniston's coverage of the new ruling, and he doesn't disappoint. The long post is headed"Major victory for gay rights, same-sex marriage," and begins:

For the first time in history, a federal appeals court on Thursday gave gays and lesbians a broad new form of constitutional protection against discrimination, and extended that protection to their rights when they get married under state law. The 2-1 decision by the Second Circuit Court in New York City enhances significantly the importance of the ongoing constitutional dispute over gay rights as the Supreme Court seems likely to confront that question anew, in the specific area of same-sex marriage.

The scope of the ruling Thursday was probably more important than the final outcome — a ruling that the 1996 federal Defense of Marriage Act is unconstitutional because it denies legally married same-sex couples the benefits and opportunities under federal law that are fully available to opposite-sex married couples. In fact, the Circuit Court became the tenth federal court to strike down DOMA’s Section 3, in an unbroken recent string. * * *

In technical legal terms, what the Second Circuit decision did was to declare that gays and lesbians have become victims of continuing discrimination, and their sexual identities makes them a distinctive class, and, as such, any laws that would discriminate against them must be judged by “heightened scrutiny.”

That standard, sometimes called middle-level scrutiny, tests whether a government policy that is claimed to discriminate against individuals based on their homosexual identity actually serves a significant government policy, and, if not, it will be struck down.

That is one step higher than what is called “rational basis” review. Under that standard, almost any government policy can withstand a constitutional attack, if it has a reasonable justification. Some courts have sought to toughen that standard, as, indeed, did the First Circuit in the other DOMA decision by a federal appeals court. But that somewhat elevated standard is not as tough to meet as “heightened scrutiny.” Thus, laws said to discriminate against homosexuals would have a harder time withstanding that stricter standard.

Under the Second Circuit’s use of that more demanding analysis, discrimination based on sexual identity is now to be judged by the same test that is used when a law is claimed to discriminate against a man or a woman based on their gender.

[More] See also this post by Jonathan H. Adler at the Volokh Conspiracy titled "A Few Thoughts on the Second Circuit’s DOMA Decision."

Thursday, October 18, 2012

Ind. Courts - Libertarian running for Marion Superior Court?

The ILB this evening saw a copy of an email sent out today by the IndyBar titled "IndyBar Supplemental Judicial Evaluation - response due by Oct. 28." The message began [ILB emphasis]:

Indianapolis has long been fortunate to have well-qualified jurists on the Superior Court bench. In support of that goal the Indianapolis Bar Association ("IndyBar") has conducted judicial evaluations for more than 20 years. The intent is to educate the public on the qualifications of candidates for judicial office. A Libertarian candidate has joined the ballot with the Democratic and Republican candidates selected in the May primary election. Therefore, this survey is to supplement our efforts from earlier this year.

Please accept this invitation to review the survey related to this additional candidate and, if appropriate, complete it.

The message does not identify the candidate. He is identified as "Jeffrey H. Knoop" in the survey itself.

The ILB googled Mr. Knoop and found the website of Jeffrey Knoop for Judge, a blog with a single post, dated March 19, 2012, reading "Vote for Jeffrey Knoop for Marion County Superior Court Judge on November 6, 2012."

First I wondered why the IndyBar was so late in adding Mr. Knoop to its survey. Then I wondered whether Knoop was on the ballot - people are already voting, in person and by absentee ballot.

A quick check of the sample ballot I printed out Tuesday showed only the Republican and Democratic candidates for Superior Court, no Libertarian candidate for judge.

Speculation is that the Libertarian neglected to file with the Secretary of State and that the IndyBar sent out its survey email late this afternoon by mistake. Would be pleased to learn more ...

Ind. Decisions - Petition to transfer in David Bisard case

QUESTIONS PRESENTED ON TRANSFER
The issue presented is whether the trial court erred when it suppressed a blood test result
for purpose of Title 9 charges (Driving While Intoxicated) but ruled the same blood test result
admissible for purposes of Title 35 charges (Criminal Recklessness and Reckless Homicide). In
reversing the trial court's suppression of the blood evidence, did the Court of Appeals reweigh
the evidence, substitute its judgment for that of the trial court, significantly depart from accepted
standards of review, and misinterpret existing precedent in a way that conflicts with existing
appellate decisions?

Law "Pope transfers Vatican official who backed U.S. nuns to Indianapolis"

Ind. Gov't. - "Indiana BMV sets hearing for man denied voter ID"

Updating this ILB entry from Oct. 12th, that was headed "More on: Federal court ruling holds the right to be issued a photo ID needed to vote, marry and adopt children is a property right protected by the 14th amendment," Jill Disis of the Indianapolis Star is reporting this morning:

An Indiana man caught in a legal battle with the state for a photo ID card will get his chance in a hearing scheduled for Oct. 26.

Joesph Worley was born in Indiana and currently resides in Muncie. His license was suspended after a drunken driving conviction and he has been trying to get a new one since 2008, but says he has been unable to do so.

The reason, according to court documents, is that Worley's Social Security card, which reads "Joesph A. Worley," and his birth certificate, which reads "Joseph Alan Ivey," do not match.

Worley brought the complaint after being unable to get a photo ID card, which is required to vote under the 2007 Indiana voter ID law. Given requirements by the Bureau of Motor Vehicles, Worley would be required to change his name first, something he says he can't do without a photo ID. * * *

Worley's hearing was ordered by U.S. District Judge Sarah Evans Barker earlier this month.

The exigency of holding such a hearing is, of course, obvious, given the upcoming November elections. Accordingly, the BMV is hereby ordered to conduct forthwith an evidentiary hearing during which Mr. Worley shall set forth the reasons he believes he should be granted a photo identification card. At the same time, the BMV will be permitted to conduct its own review of whether or not Mr. Worley's conduct is fraudulent or otherwise improper. The hearing and the decision by the BMV must occur with all due haste and, in any event, prior to the November 6th elections. All other facets of this lawsuit are stayed pending the outcome of this hearing.

Eric Weddle of the Lafayette Journal Courier has this long story today that begins:

For the second time, Indiana’s top official on ethics issued an informal opinion that Gov. Mitch Daniels is clear to become Purdue University president next year and take on all job responsibilities.

Questions over the ethics of Daniels’ hire and whether various state post-employee rules would prevent him from lobbying for the school or even continue to make decisions related to higher education as governor have hung over his selection since it was announced in June.

Since then, Daniels has maintained that no lines would be crossed but if any rules arguably applied to him, another Purdue official would lobby in his place.

In my August 9, 2012 opinion, I advised you were not restricted from lobbying the Legislature pursuant to 42 IAC 1-5-14 (IC 4-2-6-11(b)(1)). The Executive Branch Director of Executive Branch Lobbying advised you on Executive Branch lobbying rules.

The ILB discussed this issue in the latter part of this August 19, 2012 post that begins "So the Governor is good to go, right?"

[More] Reporter Eric Weddle has just linked to a second document from Oct. 16, Inspector General Report 2012-06-0144, titled "The Governor as Purdue University President."

Dugan argues that his habitual offender enhancement is an illegal sentence. He contends that, at the time of his sentencing and direct appeal, opinions from this court were in conflict on the issue. * * *

[W]e conclude that, pursuant to Jones, Dugan’s guilty plea does not preclude relief in this case. Because Dugan’s direct appeal was final at the time Mills was announced, Dugan is entitled to its retroactive application. Dugan was entitled to post-conviction relief on this freestanding claim, and the post-conviction court erred by denying the claim. Because Dugan is entitled to relief on this claim, we need not address his claim of ineffective assistance of appellate counsel.

Conclusion. The post-conviction court erred when it denied Dugan’s claim that Mills applied retroactively to his habitual offender enhancement. Accordingly, we reverse and remand for the post-conviction court to vacate Dugan’s habitual offender enhancement.

State of Indiana v. Shaun L. Steele (NFP) - In this pro se appeal, the opinion concludes: "In summary, we reverse the grant of Steele’s PCR petition on the issue of double enhancement, but affirm the post-conviction court in all other respects. We remand for proceedings consistent with this opinion."

You or your firm could join this list of valued ILB supporters! Here is a copy of the ILB Supporter Agreement that you can fill out and mail.

What about adding some additional major supporters? In the past I've approached the Appellate Section of the ISBA, along with the Indianapolis Bar Association, to no avail. And what about some of the big Indianapolis firms that might add the ILB to the various other entities they support ...

What if you'd prefer to send an anonymous individual donation (i.e. not be identified on the ILB) from time to time, rather than making an annual commitment? A handful of you already have done that, and I really appreciate the support. To do so, simply make your check out to Environmental Information Solutions and mail it to 1319 N. Alabama St., Indianapolis 46202-2523. [Sorry, we are not 501(c)(3).] Include your email if you'd like an acknowledgment of receipt and a thanks. Thanks to those of you who have elected to send the ILB a donation in this way. No amount is too small, or of course, too large.

Environment - "State acquires more land for Healthy Rivers project"

SEYMOUR, Ind. (AP) — The state of Indiana has acquired another 180 acres in southern Indiana as part of an initiative nearly 70,000 acres of land along the Muscatatuck River and the Wabash River/Sugar Creek corridors.

The Indiana Department of Natural Resources recently announced it had acquired two parcels of land in Jackson County — one with 136 acres and the other with 44 acres — as part of its Healthy Rivers Initiative. It says both parcels include forested wetlands characterized by bottomland hardwood trees that provide habitat for migratory birds and waterfowl. The Muscatatuck National Wildlife refuge east of Seymour is nearby.

The agency says the latest acquisitions bring to 7,600 acres the amount of land in the Muscatatuck project area protected from development.

Reconciling ever-changing science and technology with established Constitutional principles - set down by statutes and rulings long before the modern world was even imagined - will be an ongoing challenge for federal courts, especially his own, U.S. Chief Justice John Roberts said Wednesday during a Rice University discussion.

"Is being able to see through walls a violation of search and seizure protections? I think it will be a good opportunity to see how prescient the framers were if the Constitution will be able to deal with these questions," Roberts told an audience of several thousand. "What is the fundamental protection offered by the Constitution when applied to new technology and situations? It's a question that comes along all the time."

Law - "Statutes of Limitation in Federal Criminal Cases: An Overview"

This is a new report from the Congressional Research Service. From the summary of the 38-page report, by Charles Doyle, Senior Specialist in American Public Law:

A statute of limitations dictates the time period within which a legal proceeding must begin. The
purpose of a statute of limitations in a criminal case is to ensure the prompt prosecution of
criminal charges and thereby spare the accused of the burden of having to defend against stale
charges after memories may have faded or evidence is lost.

There is no statute of limitations for federal crimes punishable by death, nor for certain federal
crimes of terrorism, nor, since passage of the Adam Walsh Child Protection and Safety Act (2006)
(P.L. 109-248), for certain federal sex offenses. Prosecution for most other federal crimes must
begin within five years of the commitment of the offense. There are exceptions. Some types of
crimes are subject to a longer period of limitation; some circumstances suspend or extend the
otherwise applicable period of limitation.

Douglas Walker of the Muncie Star-Press reported yesterday in a long story that begins:

On Feb. 24, 2010, Brian “Scott” Hartman described to police how, a dozen days earlier, he had used a shotgun to kill his sleeping father in the family’s southwestern Randolph County home.

That task completed, Hartman said, he then helped his mother take her own life with an overdose of prescription medication.

A Randolph County judge and the Indiana Court of Appeals have ruled those statements can be used as evidence when Hartman, now 36, stands trial on charges of murder and assisting suicide.

But now the Indiana Supreme Court apparently will weigh in on the issue, which has kept the Hartman case at a legal standstill for nearly three years.

Chief Justice Brent Dickson has scheduled a Dec. 7 hearing in Indianapolis at which Hartman’s defense attorney, Mark Cox of Richmond, and lawyers from the Indiana attorney general’s office will argue the merits of the previous rulings.

If the Supreme Court decides to take action, it almost certainly will result in still another postponement of Hartman’s trial, now set for Jan. 14 in Randolph Circuit Court.

A check by the ILB of both past ILB postings and its database of transfers shows that this case was not granted transfer, and has not yet been included on a Transfer List, including that for the week ending Oct. 10th.

A check of the docket (Case Number: 68 A 01 - 1106 - CR - 00264) shows that an order of the Supreme Court on Oct. 9, 2012 begins:

THE COURT HAS DETERMINED THAT THE ABOVE-CAPTIONED CASE WARRANTS ORAL ARGUMENT. * * * THE ARGUMENT WILL TAKE PLACE AT THE FOLLOWING DATE AND TIME: FRIDAY, DECEMBER 7, 2012, AT 9:45 A.M.

Courts - "Time, Pen and Paper, and Now the Ear of the Supreme Court"

That is the heading to this "Sidebar" column today by Adam Liptak of the NY Times. The lengthy story begins:

WASHINGTON — Kim Millbrook, an inmate at a federal prison in Pennsylvania, has 31 years of hard time on his hands. He has been using it to sue people.

The courts have considered his lawsuits with patience and even solicitude, and last month he overcame long odds by persuading the Supreme Court to grant his handwritten petition seeking review of a decision in one of his many cases.

Mr. Millbrook is the kind of litigious prisoner that judges call a frequent filer. He has been inside four prisons and jails, and he has sued over asserted mistreatment in all of them.

He sued corrections officers at the Rock Island County Jail in Illinois for, he said, using excessive force in connection with a search of his cell. Then he sued law enforcement and medical personnel at the Henry County Jail, also in Illinois, for what he said were inhumane conditions and inadequate care.

He went on to sue the federal government for failing to protect him from an assault by a fellow inmate, Davon Golden, when the two men were in a federal prison in Terre Haute, Ind.

Judges have uniformly rejected Mr. Millbrook’s lawsuits, which one of them said can be “somewhat difficult to decipher.” They have done so in careful and detailed decisions that only occasionally betray a hint of impatience.

In the Indiana case, for instance, Judge William T. Lawrence of Federal District Court in Terre Haute wrote in March that “the proximate cause of Millbrook’s injuries was Millbrook’s ill-advised decision to attack inmate Golden, who turned out to be armed and disposed to protect himself.”

Later the article points out:

Exactly 50 years ago, in 1962, the Supreme Court agreed to hear another handwritten petition, this one from Clarence Gideon. The court appointed Abe Fortas, a prominent lawyer and future Supreme Court justice, to represent him. The next year, the court decided Gideon v. Wainwright, the landmark decision that said the government must provide lawyers to poor people accused of serious crimes.

Ind. Decisions - More on "Indiana high school agrees to move girls basketball games to 'prime time'"

INDIANAPOLIS — A federal consent decree in which 10 southeastern Indiana high schools agree to schedule girls and boys basketball games equally on Friday and Saturday nights sets a legal precedent for the entire state, one of the attorneys in the case said Tuesday.

The consent decree between Franklin County Community School Corp., former girls basketball coach Amber Parker and nine of its opponent schools calls for girls and boys games to be scheduled equally by the 2016-17 school year, with interim steps until then, said attorney William Groth, who represented Parker in the case.

The decree approved Monday in federal court in Indianapolis applies directly only to the 10 schools but sets a solid legal precedent across the entire 7th U.S. Circuit because the federal appeals court ruled earlier this year that equal scheduling for both genders is required under Title IX of the Higher Education Act, Groth said.

"The 7th Circuit's decision earlier this year sent a clear message not only to the lower federal courts but to all high school athletic directors that Title IX requires equality in all phases of high school athletics, including the scheduling of athletic contests," Groth said. * * *

Under the consent decree, Franklin County and the schools it plays agree to schedule at least two more girls games during prime time in 2013-14 than it did in 2011-12, at least four more the following year, and at least six more in 2015-16 until reaching scheduling parity in 2016-17.

"We would have liked to have seen the timetable for getting to full equality accelerated," Groth said. Because schools schedule games years in advance and sign contracts, "we had to agree to phase in these steps toward equality."

Ind. Decisions - Court of Appeals issues 3 today (and 6 NFP)

Earl Shields, Larry Joe Shields, and Robert Shields (collectively, the “Shields”) appeal the trial court’s Findings of Fact, Conclusions of Law and Order, and subsequent denial of the Shields’ motion to correct errors, in favor of Rodney Taylor. The Shields raise one issue which we revise and restate as whether the court erred in concluding that their counterclaim was not sufficiently pled to encompass a theory of easement by prescription. We affirm. * * *

The specific issue in this case is whether the Shields sufficiently pled facts claiming that their use of the dirt road over Taylor’s property connecting Earl Young Road and the long bottom had established a prescriptive easement. We observe that once a prescriptive easement has been established, the right vests by operation of law. “However, prescriptive easements generally ‘are not favored in the law.’” “The existence or non existence of a prescriptive easement is a question of fact.” A party claiming the existence of a prescriptive easement must provide evidence showing “‘an actual, hostile, open, notorious, continuous, uninterrupted adverse use for twenty years under a claim of right.’” [ILB- many cites omitted from preceding] However, in Fraley v. Minger, 829 N.E.2d 476, 486 (Ind. 2005), the Indiana Supreme Court reformulated the elements of adverse possession. These new elements apply to establishing prescriptive easements, except for those differences required by the differences between fee interests and easements. Wilfong, 838 N.E.2d at 406. Therefore, a party claiming the existence of a prescriptive easement “must establish clear and convincing proof of (1) control, (2) intent, (3) notice, and (4) duration.” * * *

Use of land for access is not adverse if that use is permissive in nature. * * *

The Shields in their counterclaim did not plead that they used the dirt road on Taylor’s property in an adverse manner for twenty years or more. Accordingly, we conclude that the court did not err in finding that their counterclaim alleged only consensual entry or a consensual right of access to Taylor’s property.

For the foregoing reasons, we affirm the trial court’s December 9 Order and denial of the Shields’ motion to correct errors.

D.L., Glen Black, Ann Black, Steven Lucas, and K.L. (collectively, the “Family”) appeal the trial court’s dismissal of seven out of eight counts of their complaint against the Tippecanoe County Department of Child Services and five of its employees (collectively, “DCS”). The Family raises two restated issues on appeal: 1) whether DCS was entitled to quasi-judicial immunity as granted by the trial court; and 2) whether Glen, Ann, and Steven had standing to assert claims against DCS. Concluding that DCS was not entitled to quasi-judicial immunity, but is entitled to statutory immunity as to all but one of the seven dismissed claims, and that Glen and Ann had standing to bring suit but Steven did not, we remand.

Appellant-Defendant Wind Wire LLC appeals the trial court’s judgment that it fraudulently induced Appellees-Plaintiffs Roger and Patricia Finney to execute a contract for the purchase and installation of a residential wind turbine and that it breached that contract’s implied warranty of fitness for a particular purpose. We affirm.

Ind. Decisions - Supreme Court decides one today

This case involves an employee who was fired from his job for his failure to follow the instructions of his supervisor regarding missed work time. The employee wanted to take a college class during normal work hours and make up those hours later in the day or otherwise at his discretion. His employer allowed him to take the class, but informed him that he would have to use his vacation, compensation, or unpaid time rather than take shorter lunches, come in early, or stay late. J.M. subsequently enrolled in the class, but did not follow his employer’s instructions and failed to properly account for his time off. Consequently, he was fired and denied unemployment benefits. An Administrative Law Judge overturned that decision and granted J.M. unemployment benefits. The Review Board upheld the original denial of unemployment benefits. We affirm the Board’s determination that the termination was for just cause. * * *

The Review Board reversed the ALJ’s decision and found that J.M. was discharged for just cause and ineligible for unemployment benefits. Specifically, the Review Board noted that J.M. had violated the direction from his supervisor as well as the policy found in the employee handbook. The Court of Appeals reversed the Review Board. We granted transfer. * * *

We may rely on a different statutory ground of a just cause finding than the one relied upon by the Review Board when, as here, the Review Board’s findings of fact clearly establish the alternate subsection’s applicability. As such, we affirm the Review Board under Indiana Code section 22-4-15-1(d)(5), that J.M. refused to obey instructions, and was thus fired for just cause.

This analysis comports with the deferential standard given to the trial courts of this state: “on appellate review the trial court’s judgment will be affirmed if sustainable on any theory or basis found in the record.” Havert v. Caldwell, 452 N.E.2d 154, 157 (Ind. 1983). “Moreover it is well established that a decision of the trial court will be sustained if a valid ground exists to support it, whether or not the trial court considered those grounds.” Bruce v. State, 268 Ind. 180, 200, 375 N.E.2d 1042, 1054 (1978). To state it yet another way, we “may affirm a trial court’s judgment on any theory supported by the evidence.” Dowdell v. State, 720 N.E.2d 1146, 1152 (Ind. 1999).

Conclusion. J.M. refused to obey instructions that were given to him on how to fill out his time sheet to incorporate his missed time. When the facts of the case support more than one statutory ground for discharge, we are not confined to narrowly review the Review Board’s decision when the facts point to the Review Board’s ultimately correct conclusion. Here, the findings of fact by the Review Board clearly showed J.M. violated his supervisor’s instructions and the employee handbook, which is also a just-cause discharge under Indiana Code section 22-4-15-1(d)(5). Accordingly, we affirm the Review Board’s denial of unemployment benefits.

Tuesday, October 16, 2012

Courts - "A look at four states that are hosting hot state supreme court races this fall."

Louis Jacobson has a long, comprehensive story today in Governing, headed "Judicial Races in Four States Draw Big Money, Partisanship." The highlighted states are Michigan, Florida, Iowa and North Carolina.

Ind. Decisions - "Indiana high school agrees to move girls basketball games to 'prime time'"

This ILB post the following day quoted from an Indianapolis Star story by Nat Newell, headed "U.S. appeals court overturns dismissal of gender-discrimination suit on Indiana high school sports."

Today the same reporter has a new story, headed "Indiana high school agrees to move girls basketball games to 'prime time.'" Some quotes:

Facing a Title IX lawsuit, Franklin County High School has agreed to increase the number of girls basketball games played in "prime time" over the next three years to match the boys' total.

Franklin County girls basketball coach Amber Parker filed a suit against Franklin County and the 13 schools on its schedule on behalf of her daughter, Jayde, because the team was not playing as many games in prime time -- defined as a game held prior to a day without school.

Title IX is the 1972 federal statute that prohibits discrimination on the basis of gender by institutions that receive federal money.

William Groth, an attorney who represented Parker and Tammy Hurley -- who filed an identical suit when Parker moved out of state -- said in an e-mail the decision "sent a clear message" to lower courts and athletic directors.

"Title IX requires equality in all phases of high school athletics, including the scheduling of athletic contests," Groth said. "Female student-athletes will now have the promise of equal access to prime time scheduling on Fridays and Saturdays when attendance is greatest and disruption to academics is least." * * *

According to a consent decree filed with the 7th Circuit, Franklin County will schedule at least two more girls games in prime time each of the next three seasons. It's unclear the extent to which the boys schedule will change.

Mr. Groth reports that he and counsel Mark Sniderman:

... engaged in protracted settlement discussions with defendants beginning in May which eventually led to the consent decree and settlement. Magistrate Hussmann presided over those negotiations.

Unfortunately, the ILB is unable to assess exactly what most of the changes between the two versions may be, because the Sept. 7, 2012 version no longer appears on the Court website.

However, the Sept. 25th ILB post did quote the now withdrawn language of Adm. Rule 5(B)(4). Quoting from the earlier entry (I've emphasized the portion that elicited concern):

One of the revisions to Admin Rule 5(B) recently approved (Sept. 7, 2012) by the Supreme Court and effective Jan. 1, 2013, adds a new requirement on top of the list of requirements in Admin Rule 5(B)(3) for a senior judge to be certified by the JNC. But this requirement is to be imposed on the senior judge by the presiding judge wishing to use the senior judge. The new language, awkwardly inserted at the beginning of Subdivision (B)(4), Jurisdiction, requires:

The senior judge shall provide to the presiding judge, and the presiding judge shall attach to the order, a verified written statement from the senior judge that neither the senior judge, nor any firm with which the senior judge is associated practices law in the court. The order shall be filed in the Record of Judgments and Orders of the court and a copy sent to the Division of State Court Administration.

The revised language posted by the Court today reads, in relevant part:

The senior judge shall provide to the presiding judge, and the presiding judge shall attach to the order, a verified written statement from the senior judge that the senior judge does not practice law in the court.

But that is in fact correct. Judge Vaidik is the only COA judge up for retention whose district is statewide. Two 3rd District judges are up for retention, Judges Barnes and Mathias, but only the voters of that district get to vote on them. One 1st District judge is up, and again, those of us in the 2nd and 3rd Districts will not see Judge Baker's name on our ballots.

Again, although the Supreme Court justices standing for retention will be on ballots statewide, for the Court of Appeals judges, only Judge Vaidik will be on every ballot statewide; Baker will only be on 1st district ballots and Barnes and Mathias will only be on 3rd district ballots. (The districts are explained here on the COA website.)

Ind. Decisions - Court of Appeals issues 1 today (and 2 NFP)

Charles Mitchell appeals his conviction and sentence for Class D felony theft. Ind. Code § 35-43-4-2(a) (2009). He contends that the evidence is insufficient to sustain his conviction, the trial court relied on improper aggravators when sentencing him, and his sentence is inappropriate. We affirm.

Ind. Courts - "Timing is everything"

Both the Indiana Supreme Court and Indiana Court of Appeals periodically meet in communities outside Indianapolis in a welcome effort to engage more Hoosiers in the judicial process. This coming Monday, a three-judge panel of the appeals court will hear oral arguments in a case in Fort Wayne. The three-judge panel will be Paul Mathias, a former Allen Superior Court judge, as well as Nancy Vaidik and Michael Barnes.

It just so happens that those are the three names northeast Indiana voters will see on the appeals court retention ballot on Nov. 6.

Ind. Decisions - Supreme Court issues new disciplinary opinion

Respondent was suspended for registration fee ("dues") nonpayment and continuing legal education ("CLE") noncompliance effective 11:59 p.m., June 20, 2008. Respondent was aware of this suspension, which is still in effect. Nevertheless, Respondent continued to practice law as an associate in the employ of a law firm for more than three years, until approximately September 9, 2011.

The parties agree that Respondent practiced law while suspended in contempt of this Court's suspension order. The parties propose the appropriate sanction in the circumstances of this case is imposition of a $250.00 fine and conversion of her dues nonpayment and CLE noncompliance suspension to an indefinite suspension from practice. Respondent admits that she practiced law unabated for three years, knowing she was suspended. The only issue is whether the punishment proposed is sufficient. * * *

The sanction imposed for Respondent's contempt of court might have been more severe had this matter been submitted without the Commission's agreement that the punishment proposed is sufficient under the circumstances. If Respondent petitions for reinstatement, Respondent will be required to address her dues nonpayment, her CLE noncompliance, her knowing violation of this Court's suspension order, and the attorney fees she earned while suspended. Approval of a petition for reinstatement is discretionary and requires clear and
convincing evidence of the attorney's remorse, rehabilitation, and fitness to practice law. See Admis. Disc. R. 23(4)(b).

IT IS THEREFORE ORDERED that Respondent be fined the sum of two hundred and fifty dollars ($250.00). Respondent shall remit this amount within 60 days of the date of this order to the Clerk of the Indiana Supreme Court, Court of Appeals and Tax Court.

IT IS FURTHER ORDERED that Respondent's current suspension from the practice of law for dues nonpayment and CLE noncompliance is converted to an indefinite suspension, effective immediately. Respondent is ordered to fulfill the continuing duties of a suspended attorney under Admission and Discipline Rule 23(26). To be readmitted to the practice of law in this State, Respondent must cure the causes of all suspensions in effect, pay the $250.00 fine and any other amounts owing to the Court, the Clerk, or the Commission, and successfully petition this Court for reinstatement pursuant to Admission and Discipline Rule 23(4) and (18).

Ind. Courts - Here are the results of the ISBA Judicial Retention Evaluation

Supplementing the Judicial Retention 2012 website, the ISBA has just this afternoon released the results of its ISBA Judicial Retention Evaluation - a poll of members' opinions of the appellate judges standing for retention this November. Here is the summary:

The yes/no retention results of the justices and judges (with their swearing-in dates) are as follows:

On appeal, Morelock argues that he is entitled to recover appellate attorney fees from Cecil pursuant to Indiana Appellate Rule 66(E). He contends that the arguments raised by Cecil are “devoid of any merit and are frivolous in nature.” Morelock claims that Cecil’s brief is filled with baseless theories, speculative statements, and inaccurate arguments not grounded in the designated evidence. Under these circumstances, he asserts that he is entitled to an award of appellate attorney fees. We agree. * * *

Here, Cecil’s briefs are practically devoid of articulate arguments and instead contain incomplete sentences, disjointed arguments, and unsupported accusations of collusion by Morelock with the Board. In light of Cecil’s failure to present cogent arguments and to support its contentions throughout the briefs, we hold that appellate attorney fees are appropriate in this case. [cite omitted] Therefore, we remand to the trial court for a determination of Morelock’s appellate attorney fees.

Here, the Rodemans’ appeal was not an appeal of a final judgment on all issues as
to all parties. Prior to the order granting summary judgment, the Rodemans had filed a motion to amend to add Threestrands by Grace as a defendant, and the motion was
granted subsequent to the granting of the motion for summary judgment. As such, the
issues or claims in this case have not yet been resolved in regard to Threestrands by
Grace.

The appeal could have been proper under Trial Rule 54(B), as to some issues or
some parties, but it was not certified as such pursuant to Trial Rule 54(B). In its August
31, 2011 order, the trial court did not indicate that there was “no just reason for delay”
and did not direct “entry of judgment.” See Ind. R. Trial P. 54. In Berry, we noted that
Indiana Trial Rules 54(B) and 56(C) were adopted “to provide greater certainty to the
parties and to strike an appropriate balance between the interest in the speedy review of
certain judgments and the inefficiencies of piecemeal appeals.” 643 N.E.2d at 329 (Ind.
1994). For this court to exercise jurisdiction, the trial court must decide all issues with
regard to all parties for the judgment to be final, or the trial court must make the
judgment final as to less than all parties or issues by expressly determining in writing that
“that there is no just reason for delay” and directing “entry of judgment.” See Ind. R.
Trial P. 54. The trial court did not do either in this case.

Ind. Decisions - Transfer list for week ending Oct. 12, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

Seven years after Dennis Jack Horner (“Husband”) and Marcia (Horner) Carter (“Wife”) reached a mediated settlement agreement during dissolution proceedings, Husband sought to modify the terms of that agreement on the basis of mistake. The trial court denied his request. Husband now appeals, contending that the trial court should have allowed him to offer extrinsic evidence—specifically, communications that occurred during mediation—to show that there was a mistake in the drafting of the agreement. We conclude that Alternative Dispute Resolution Rule 2.11 and Indiana Evidence Rule 408 allow the introduction of mediation communications to establish traditional contract defenses. We also find that the trial court correctly determined that the agreement in this case provided for a property settlement that survived Wife’s remarriage. We affirm.

Brad W. Passwater v. State of Indiana - This was a 10-page, July 25, 2012 NFP COA opinion involving PCR, concluding: "Indeed, it would seem that his defense counsel chose a sound strategy in requesting the instruction given the apparent misunderstanding of the consequences expressed by a juror during voir dire. Passwater has not shown any deficient performance by his defense counsel, and, therefore, his claim of ineffective assistance of counsel is unavailing."

Law - "Voter Proof-of-Citizenship Law Gets Supreme Court Review"

The U.S. Supreme Court agreed to decide whether states can demand proof of citizenship from people registering to vote, taking up an Arizona case with racial overtones and nationwide implications.

The case, which the court won’t consider until after the Nov. 6 election, tests states’ power to impose requirements that go beyond the registration procedures set out by federal law. A U.S. appeals court invalidated Arizona’s proof-of-citizenship law.

STATEHOUSE – House Speaker Brian C. Bosma (R-Indianapolis), Chairman of the Legislative Council, announced today the appointment of George Angelone to serve as the Executive Director of the Legislative Services Agency (LSA). In addition, Bosma announced the appointment of Diane Powers as Deputy Executive Director of LSA.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (10/15/12):

No arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of (10/22/12):

Thursday, October 11th

9:00 AM - Joseph A. Davis v. Herbert Simon and Bui Simon (49S04-1208-CT-498) - When Simon and his wife sued Davis, a California attorney, for defamation and false light publicity based on a statement Davis made during a phone call with an Indianapolis-based news organization, Davis moved to dismiss, and the Marion Superior Court denied the motion to dismiss. The Court of Appeals reversed, concluding that the trial court lacks personal jurisdiction over Davis because he did not expressly aim his conduct at Indiana. Davis v. Simon, 963 N.E.2d 46 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal

ILB: This is a 26-page, Feb. 29, 2012 COA opinion, where the question is whether the Simons have jurisdiction to sue Mr. Davis (of California) in Indiana. "Joseph A. Davis appeals the trial court's denial of his Motion to Dismiss for Lack of Personal Jurisdiction, or in the Alternative, on Grounds of Forum Non Conveniens, in favor of Herbert and Bui Simon." The trial court denied Mr. Davis' motion to dismiss. The COA panel here reverses, 2-1.

9:45 AM - Whiskey Barrel Planters Co., Inc. v. American GardenWorks, Inc. (04S03-1209-PL-503) - After purchasing "substantially all" the assets of Whiskey Barrel Planters, American GardenWorks filed a complaint alleging Whiskey Barrel Planters and its two shareholders failed to turn over certain assets included in the sale. Whiskey Barrel Planters filed counterclaims for conversion and replevin. The Benton Circuit Court denied Whiskey Barrel Planters' motion for partial summary judgment. After a trial, the court entered judgment for American GardenWorks. The Court of Appeals reversed, concluding the sale of "substantially all" the assets of Whiskey Barrel Planters did not include season football tickets, shareholder loans, or personal property, and that the shareholders were entitled to recover any personal property converted by American GardenWorks. The Court of Appeals remanded for further proceedings on the attorney's fees awarded to American GardenWorks. Whiskey Barrel Planters Co., Inc. v. American GardenWorks Inc., 966 N.E.2d 711 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

10:30 AM - State of Indiana ex rel Indiana Supreme Court Disciplinary Commission v. Derek Farmer (94S00-1103-MS-165) - The Indiana Supreme Court Disciplinary Commission filed a verified petition under Indiana Admission and Discipline Rule 24 to enjoin the Respondent, Derek A. Farmer, from engaging in the unauthorized practice of law. Farmer filed a return opposing the petition. A Commissioner appointed by the Court held a hearing and made factual findings, after which the parties filed briefs responding to the Commissioner’s findings. The Court has granted a motion for oral argument.

This week's oral arguments before the Court of Appeals (week of 10/15/12):

Wednesday, October 17th

[Rescheduled for Nov. 5, 2012 at 1:30 PM] - Duke Energy v. Indiana Utility Regulation Commission (93A02-1111-EX-1042) - A January 2009 ice storm in southern Indiana caused damage to Duke Energy Indiana’s electrical system. Duke filed a petition with the Indiana Utility Regulatory Commission (IURC) seeking deferred accounting treatment for its operating expenses relating to this storm. An evidentiary hearing was held, and Scott Storms was the administrative law judge. The Indiana Office of Utility Consumer Counselor (OUCC) opposed Duke’s request for deferred accounting treatment on grounds that it constituted both retroactive ratemaking and single-issue ratemaking. The IURC approved Duke’s request, and the OUCC appealed.
While the OUCC’s appeal was pending before this Court, Storms accepted employment with Duke. After it was discovered that Storms was negotiating employment with Duke while cases involving Duke – including this one – were pending before him, an investigation was launched. Pursuant to Indiana Appellate Rule 37, the OUCC filed a verified motion for stay of appeal and remand. This Court granted the OUCC’s motion and remanded this case to the IURC. In addition, the IURC reopened this case for further review and consideration. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes.
[Where: Indiana Supreme Court Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 10/22/12):

Monday, October 22nd

10:30 AM - James O. Young v. State of Indiana (20A04-1112-CR-699) - James Young appeals his conviction for Class D felony domestic battery and Class D felony strangulation following a jury trial. Young’s wife, the victim, did not testify at trial, but two firefighters and a police officer who had spoken with her at or near the time of the incidents involved were allowed to testify concerning the substance of the statements she made to them.
Young presents the following issues for review on appeal: (1) whether the firefighters’ and police officer’s testimony regarding the victim’s statement to them was a violation of the Confrontation Clause within the Sixth Amendment of the Constitution of the United States or permissible questioning during an ongoing emergency; (2) whether the trial court abused its discretion in concluding that the victim’s statement to the police officer, more than 45 minutes after the incidents, was an excited utterance; and (3) whether there was sufficient evidence to prove that Young committed the offenses in a child’s physical presence so as to elevate the domestic battery offense to a Class D felony. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes.
. [Where: Allen Superior Courtroom No. 1
715 S. Calhoun Street
Fort Wayne, Indiana]

Tuesday, October 23rd

10:00 AM - Kenneth S. Tipton v. State of Indiana (47A01-1201-CR-4) - Kenneth Tipton was convicted of criminal recklessness after he shot at a house during a standoff with police He argues on appeal the evidence was insufficient to convict him because that offense requires proof there was a risk of injury to a person and nobody was in the house when he shot at it. The Scheduled Panel Members are: Judges Baker, May and Sr. Judge Shepard. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.

Sunday, October 14, 2012

Law - Juvenile Killers and Life Terms Without Parole

The Sunday NY Times has a long, front-page story by Ethan Bronner on sentences of life without parole for juveniles. Some quotes:

When the Supreme Court in June banned life sentences without parole for those under age 18 convicted of murder, it offered rare hope to more than 2,000 juvenile offenders like Mr. Bailey. But it threw Ms. Jamriska and thousands like her into anguished turmoil at the prospect that the killers of their loved ones might walk the streets again.

The ruling did not specify whether it applied retroactively to those in prison or to future juvenile felons. As state legislatures and courts struggle for answers, the clash of the two perspectives represented by Mr. Bailey and Ms. Jamriska is shaping the debate.

Resentencing hearings have begun in a few places, but very slowly.

The governor of Iowa commuted the mandatory life sentences of his state’s juvenile offenders but said they had to stay in jail for 60 years before seeking parole, which critics said amounted to life in prison. Some Iowa resentencing is starting in courts despite that proclamation.

In Florida, a few hearings are in early stages even though an intermediate court ruled that juveniles serving mandatory life terms did not have the right to be resentenced. In North Carolina, life without parole has been changed from a requirement to an option, with a 25-year minimum sentence for those seeking parole.

Here in Pennsylvania, which has the most juvenile offenders serving life terms — about 480 — the State Supreme Court is examining retroactivity while the legislature works on a bill that would put felons like Mr. Bailey behind bars for a minimum of 35 years.

The United States Supreme Court decision said that sentences of life without parole for juveniles failed to take account of the role of the offender in the crime (killer or accomplice), the family background (stable or abusive) and the incomplete brain development of the young. Recent research has found that youths are prone to miscalculate risks and consequences, and that their moral compasses are not fully developed. They can change as they get older.

ILB: What About Indiana?IC 35-50-2-3 provides that a juvenile under sixteen may never receive life without parole. According to Prof. Joel Schumm, those sixteen or seventeen who commit murder with at least one aggravating circumstance might receive LWOP.
This ILB entry from August 1, 2012 quotes from an AP story re the Sept. 30th, 3-2 Supreme Court decision in Andrew Conley v. State of Indiana. The story began "The Indiana Supreme Court on Tuesday upheld a sentence of life without parole for a teenager who said he wanted to be like the fictional television serial killer Dexter a few weeks before strangling his 10-year-old brother. Andrew Conley was 17 in November 2009 when he killed his brother, Conner..."

Lauri Harvey Keagle and Bowdeya Tweh have several stories and related materials in the Sunday NWI Times about the pipeline project.

"Local residents pipe up with Enbridge concerns" is the heading to this lengthy story. The is a very informative story about the whole process of how the company is going about trying to secure lease agreements along the planned pipeline route. The story is accompanied by three sidebars with even more information. A sample from the story:

LaFever said Enbridge already has an 8-foot easement around the pipeline at his property. The new plan calls for a 25-foot easement for construction of the line in addition to the current easement.

Worried about his expected loss of property, LaFever said he's also concerned about liability for things like crop loss, workers injured during the construction or maintenance of the pipeline, contamination of his well water and changes to drainage that could cause flooding.

The contract he has also would absolve Enbridge of liability associated with the pipeline construction.

"All we've been asking for is a good agreement," he said.

In a statement, Enbridge denies asking landowners to sign agreements with such language.

"We are responsible to landowners for all damages or impacts resulting from pipeline maintenance work, construction or expansion of facilities and ongoing pipeline operations," Smith said in a statement. Smith said the company works before, during and after construction to ensure landowners, workers and the public are kept safe.

The first deal LaFever was offered from Enbridge was when a representative came to his home unannounced with a contract, he said. He said he was expected to respond to the offer in two days, but needed more time.

Enbridge has offered LaFever $21,900 for property the company needs to build the pipeline. The company has assigned right-of-way agents to all the landowners affected by the project to serve as liaisons in the negotiating process.

"I want to talk to somebody beside the right-of-way agent," LaFever said. "I do have an attorney, and I had an attorney look over it. I just hired him. That's money out of my pocket."

Carl Weimer, executive director of the Pipeline Safety Trust, said the organization has seen liability-release clauses like the one LaFever described in agreements from other pipeline companies. He said it's important for landowners to understand specific contract terms being proposed especially early in the process because "there may be all types of stuff that may not be favorable."

The Pipeline Safety Trust is a Bellingham, Wash.-based watchdog organization that evolved from a grassroots group established after a 1999 pipeline rupture and explosion killed two children and an adult.

Years later, the group has been able to work with landowners in each state and created an educational guide in 2011 to inform them about property rights and pipeline safety requirements. Even with the guide, he said it's still important for landowners to get an attorney to help them through the complex process of working with pipeline companies.

A second story by the same reporters is headed "NWI officials want safety assurances on new oil pipeline." Some quotes:

At local public meetings in recent months about the projects, residents said they remain concerned about leaks and spills into local waterways after the well-publicized break on Line 6B in July 2010 in Michigan that caused more than 1 million gallons of oil to spill into and near the Kalamazoo River.

The cleanup took more than two years, cost more than $767 million and closed the waterway to recreation until this summer. The Environmental Protection Agency told Enbridge on Oct. 3 that although more than 187,000 cubic yards of oil-contaminated sediment and debris was disposed of during the cleanup, more remediation was needed in sections of the river.

The National Transportation Safety Board said the spill near Marshall, Mich., was only a symptom of larger problems with Enbridge. In a report issued in July, the NTSB scolded the company for "pervasive organizational failures” that led to the critical failure of Line 6B and diluted bitumen spill.

Following the release of the report, former Enbridge CEO Patrick Daniel said it made "numerous enhancements to their processes, procedures and training," including in its control center, as a result of the findings in the investigation. Enbridge also said safety is core to the company's operations, and Daniel said the company's intent is to learn from the incident.

Pavlovic said a construction performance bond would provide some assurance that Enbridge will do its best not to harm the environment, and if there is harm, there would be funds available to remedy that damage. With the fiscal conditions many states find themselves in, Pipeline Safety Trust Executive Director Carl Weimer said the ideal scenario would be for pipeline companies to fund the cost of environmental inspectors.

The ILB has a number of entries from 2008 and 2009 on the construction of the Rockies Express Pipeline, whose route cut through the middle of Indiana. Press coverage was spotty. The pipeline began in Colorado and continued on through Ohio. The most recent entry, from Aug. 26, 2009, is headed "Rockies Express Pipeline apparently reneges on Indiana agreements."

Environment - "Indiana faces dilemma regulating huge, industrial CAFO animal farms: While backers hail their benefits, the state struggles to regulate operations that put thousands of animals under the same roof"

Ryan Sabalow and Alex Campbell of the Indianapolis Star report today on CAFOs.

The Muncie Star-Press on Oct. 9th featured a long story by reported by Seth Slabaugh that the ILB linked to with with the heading: "IDEM recently offered to settle a 2½-year-old water pollution complaint against a pork producer for a penalty of $1,000 and the planting of 550 to 600 trees."

Last week, officials at the Department of Environmental Management signed off on a penalty: a $1,000 fine, and a promise from Chalfant to spend several thousand more planting at least 550 trees. Chalfant will pay less than 10 cents per dead fish -- at least for now. Another state agency -- the Department of Natural Resources -- also has a case pending against him.

Environmental groups say the penalty is appallingly low and will do little to deter future farmers from making similar mistakes.

"It doesn't provide any sort of incentive for CAFO owners to do the right thing," said Kim Ferraro, director of agricultural and water policy for the Hoosier Environmental Council. "It's easier for them to dump their waste in the river and kill a bunch of fish, and IDEM will look the other way."

But as Chalfant and at least one academic point out, it's not as if dumping hog manure saves him money -- it's valuable as fertilizer. So there is no financial incentive to simply dump it.

IDEM initially wanted to fine Chalfant $26,000. Chalfant, who fought the original order, thinks the lower number shows that the allegations against him were overblown, and he's ready to move on.

"I pay $1,000 and plant a few trees and get to put this thing behind me," he said. "It's a no-brainer."

ILB: Some might shrug off this penalty as "a cost of doing business." More from the long story:

Chalfant said hog farms like his boost the local economy and cause local tax bases to swell because the assessed value of their land grows exponentially after a barn is built.

"These hog barns are an economic gold mine to not only the state, but to the communities within."

And it's not as if the state's regulatory environment has stalled his progress. Even after the fish kill, and before the case was settled, Chalfant was able to double his operation to 8,000 hogs.

One section of the story discusses Indiana's encouragement of the hog production industry:

Gov. Mitch Daniels' administration has pitched the advantages of these farms in equally clear-cut terms: It's a way to diversify the economy while allowing rural farmers to keep their land.

Since 2005, the number of hogs being raised in the state has grown by 13 percent, from 4 million to 4.6 million.

That's nowhere near the goal Daniels set in 2005 (he wanted to double hog production within five years), but it comes as the number of smaller confined feeding operations has dropped in Indiana.

The largest of the farms, the CAFOs, are on the rise.

Some say the increase comes thanks to a Statehouse push to deregulate the industry and prevent those living nearby from fighting expansion.

Early in his term, Daniels signed a law limiting residents' ability to file nuisance lawsuits against the farms, and he discouraged counties from adopting regulations more stringent than the state's.

Just this year, a bill authored by state Rep. Bill Friend, R-Macy, would have made it even harder to sue. Friend owns a large hog farm. He declined to comment.

[Kim Ferraro, director of agricultural and water policy for] the Hoosier Environmental Council, fought the bill. Daniels eventually signed it, but by the time it got to his desk, most of the provisions Ferraro opposed had been removed or negated.

A second Star story today by the same reporters is headed "Wabash County neighbor says hogs are too close for comfort:
Operator says odors are under control, but Wabash County resident begs to differ."

Indianapolis - Even the smallest units of government must conform to constitutional principles protecting every eligible person's right to have their vote treated equally. The American Civil Liberties Union of Indiana advanced that principle by filing a lawsuit yesterday against an Indiana school district for depriving a woman of those rights.

Brooke Cox, a registered voter who resides in Floyd Township in Putnam County, is concerned that her vote has been "seriously diluted," according to the complaint against North Putnam Community School Corporation.

Although Indiana law requires school districts to be reapportioned before an election to achieve population equality, vast disparities exist within Putnam County. According to the last Census, Floyd Township's population was nearly five times that of the least populated township in the county, yet each township, regardless of its population, elects just one school board member. The case challenges the school corporation's failure to maintain voting districts for school board positions that conform to the one-person one-vote principles required by the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and the Constitution of Indiana. * * *

The suit, Brooke Cox v. North Putnam Community School Corporation, was filed in the United States District Court for the Southern District of Indiana, Terre Haute Division, under cause number 2:12-cv-303 WTL-MJD.

There seems to be no organized statewide effort to oppose
the retention of Justice Steve David, who faces retention for
the first time in the wake of the Barnes “Castle Doctrine”
ruling that riled a good portion of the electorate (and State
House). We thought that there could be active organized
opposition to his retention, but it seems that there are just
pockets of resistance from tea party-type groups around the
state.

These entities and assorted individuals are speaking out
to like-minded organizations (such as the Indy Defenders of
Liberty West reaching out last week to the Constitutional
Patriots in Carmel) seeking to lay a foundation for “No”
votes in early voting, but are flying largely flying under the
radar in the broader picture, which keeps Justice David and
his backers from actively forming and funding an aggressive
retention committee.

The risk for Justice David: a late “October surprise” --
the potential for these groups or individuals banding
together with no significant advance notice (perhaps with the
backing of gun rights organizations) and throwing some cash
into broadcast spots, newspaper and Internet ads, and direct
mail. Such a strategy (think back to the late October surprise
attack launched on the 1988 retention of then-Chief Justice
Randall Shepard -- largely by two of his Court colleagues)
could effectively prevent Justice David and his allies from
responding in kind.

The 2008 retention ballot marks the first election where any Indiana Supreme Court Justice has attracted more than one million “yes” votes. Indiana Supreme Court Chief Justice Randall T. Shepard, Justice Theodore R. Boehm and Justice Brent E. Dickson were each retained by Indiana voters with a solid “yes” across the state.

This year, approximately 72% of the voters statewide asked that the three justices be returned to the bench (according to the numbers most recently available from the Indiana Secretary of State.) Historically, the justices have maintained a high approval rating by voters. In 1998, the last time Chief Shepard, Justice Boehm, and Justice Dickson were on the retention ballot, more than 70% of the voters cast a “yes” ballot.

The ILB hopes to obtain the stats from the 1988 retention election, to see what then-Chief Justice
Randall Shepard's yes/no percent was in what appears to have been the most challenging of the appellate retention elections. Watch for an update.

[Updated at 6:14 PM] I'm told by a reliable source that in the 19681988 retention election, Chief Justice Shepard received a 61.7% "yes" vote.

I'm now attempting to locate or compile all the retention results since the 1970 constitutional changes. For starters, the online Secretary of State election reports only go back to 2000...

Ashmann and Riggs now petition for rehearing, requesting that we clarify whether we determined “that a trial court ‘may’ or ‘must’ order an involuntary psychiatric examination when confronted with the facts and circumstances of this case.” Appellants’ Petition for Rehearing p. 2. We grant rehearing for the limited purpose of clarifying our original opinion. * * *

At this juncture, we clarify our holding, yet reaffirm our conclusion that the trial court properly exercised its discretion in this matter. An abuse of discretion occurs when a decision is clearly against the logic and effects of the facts and circumstances of the case. Stowers v. Clinton Cent. Sch. Corp., 855 N.E.2d 739, 742 (Ind. Ct. App. 2006). That said, we in no way intimate that a trial court must compel an involuntary psychiatric examination anytime that a plaintiff alleges that he or she has suffered “great pain, emotional distress, and mental trauma” and that there is something “unique” about the case. Indeed there are unique facts in every case. In short, when a trial court is confronted with facts and circumstances like those before us, it may compel an involuntary psychiatric examination in accordance with Indiana Trial Rule 35. There is no requirement that it must do so.

Having granted rehearing and provided clarification of our holding, we reaffirm our original opinion in all respects.

In ordering annexation, the Remonstrators argue that the trial court erred by failing to give effect to the publication requirement. The City passed the Ordinances on September 26, 2008. Under I.C. §§ 36-4-3-7(a) and 5-3-1-2(h), the City was required to publish notice of passage by October 26, 2008. However, the City admittedly did not publish notice of passage until December 6, 2008. Seizing upon this procedural defect, Remonstrators argue that by failing to adhere to the statutory publication requirements, the Ordinances and therefore the City’s annexation is void. We disagree.

While the municipality must demonstrate compliance with the annexation statutes at the evidentiary hearing, once the provisions of I.C. §§ 36-4-3-11 to -16 are satisfied, the trial court must order annexation. Bradley v. City of New Castle, 764 N.E.2d 212, 215 (Ind. 2002). Thus, technical or procedural wrongs by the municipality during the annexation process that arise out of statutes other than I.C. §§ 36-4-3-11 through -13, require a showing by the Remonstrators that their substantive or procedural due process rights have been violated. City of Kokomo ex rel. Goodnight v. Pogue, 940 N.E.2d 833, 837 (Ind. Ct. App. 2010). A mere failure to follow applicable rules or procedures to the letter does not, without more, amount to such a violation. * * *

[W]e cannot agree that Remonstrators have shown that their ability to obtain remonstration signatures would be significantly impaired by the procedural oversight that occurred in this case. As Remonstrators assert no other basis to challenge the trial court’s approval of the annexation, we conclude that trial court did not err by ordering the annexation.

Ind. Decisions - More on: Federal court ruling holds the right to be issued a photo ID needed to vote, marry and adopt children is a property right protected by the 14th amendment

The headline to the long story by Jill Disis reads "One man's quest to prove his identity: State's voter ID law sets stage for legal battle that goes back to a name change from long ago." The story begins:

Joesph Worley is a Hoosier, born and raised.

But to prove his residency to the state of Indiana, he can't use his birth certificate, Social Security card or proof of residence.

He needs his mom.

Worley is in the middle of a two-year battle with the state for a photo ID card, something he says he has been denied because of tough identification requirements imposed by the Indiana Bureau of Motor Vehicles.

Couple that with Indiana's voter ID law -- one of the strictest in the nation -- and Worley says his case turns into an argument against voter disenfranchisement.

Now, Worley's case could set a new precedent for legal identification. On Tuesday, two years after he sued the state to obtain a photo ID, a federal judge has ordered the BMV to allow Worley a due-process hearing. And his mom's testimony might be the determining factor.

"Most people aren't required to prove they are who they say they are," said Worley's attorney, William Groth. "There's not really a lot of precedent for what they have to produce when their identity is challenged.

"I suppose the best evidence that one can produce is one's own mother. She's willing to testify that, yes, she gave birth to him."

The hearing date isn't set, and Groth is hoping the BMV decides to drop the case and give Worley an ID card. But to understand Worley's complex problem, you have to go back to the beginning.

Supporters of voter identification laws often argue that everyone who wants a valid ID can get one if they only try, ignoring the complications facing people who were born hundreds of miles away or who may not have a birth certificate.

This week, another problem with getting ID was made public in federal court.

A federal judge who six years ago upheld Indiana’s tough voter ID law ruled a Hoosier was denied his 14th Amendment right to due process after the Bureau of Motor Vehicles refused to give him a driver’s license or ID. The problem? His birth certificate and Social Security card – through no fault of his own – do not match.

“Our review of the record indicates that Mr. (Joseph) Worley cannot avail himself of the appropriate state law remedy, which is completion of the name change process detailed in the Indiana Code,” U.S. District Judge Sarah Evans Barker wrote.

The U.S. Court of Appeals for the Seventh Circuit will hear oral arguments in three cases from noon to 2:00 in the Moot Court Room.

Cloe v. City of Indianapolis No. 12-1713

Plaintiff-appellant Cloe contends the district court erred by granting summary judgment for her employer, the City of Indianapolis, on her Americans with Disabilities Act claims for (a) failing to accommodate disabilities resulting from multiple sclerosis, and (b) discriminating and retaliating against her in terminating her employment.

Jordans v. Binns & US Xpress No. 11-2134

Plaintiff-appellant Jordan was severely injured when her motorcycle collided with a semi operated by defendant Binns for his employer. A jury found the defendants not liable for the accident. Plaintiff seeks a new trial, arguing that the trial court erroneously admitted hearsay evidence from statements made at the scene of the accident and in an insurance investigation report.

U.S. v. Westmoreland No. 10, 3961

Defendant-appellant Westmoreland was convicted on drug, murder, and conspiracy charges. He contends the trial court erred by denying his motion for a new trial based on new evidence that a government agent had an affair with his wife during the investigation, by waiting eight years to deny the motion for a new trial, and by refusing to appoint counsel to assist him.

The announcement also includes links to the briefs in the three cases.

Thursday, October 11, 2012

Ind. Courts - ISBA members, tomorrow is your last day to participate

Be sure to submit your responses for the ISBA Judicial Retention Evaluation before COB tomorrow (Friday). Completing the yes/no form takes only a few seconds and the responses are anonymous. If you haven't responded and are an ISBA member, you'll need to dig the invitation out of your back emails or spam file.

But before you do, take a quick look at the Judicial Retention 2012 website to refresh your memory about the appellate judges standing for retention this November.

Ind. Courts - "Indiana justice challenged over contentious ruling "

INDIANAPOLIS (AP) — An Indiana Supreme Court justice who wrote a ruling that set off a public uproar and provoked legislators into passing a new state law faces rare opposition in a routine retention vote.

Justice Steven David must pass a simple yes-or-no vote in the Nov. 6 election to keep his seat on the state’s highest court. Experts say Indiana judges survive them more often than not.

ILB: Actually, "more often than not" is incorrect. Every Indiana Supreme justice and Court of Appeals judge who has stood for retention since the Indiana Constitution was amended to impose the "yes-or-no" requirement in 1970 has been approved handily. The story does say that, further down:

David’s detractors face an uphill battle: Political experts say no justice has been removed from the high court since Indiana’s constitution was amended in 1970 to require them to win periodic retention votes.

“Since then, everybody has been retained, and usually by large margins,” said Andy Downs, director of the Mike Downs Center for Indiana Politics at Indiana University-Purdue University Fort Wayne.

Joel Schumm, a professor at Indiana University’s Robert H. McKinney School of Law in Indianapolis, said votes in favor of retaining justices historically are around 70 percent.

Both said concerted efforts to remove a particular justice are rare. Downs said this drive is unusual in its single-mindedness and the fact that it’s apparently backed by a political organization.

Even so, Downs said, “this will have to be an incredibly well-coordinated campaign.”

The state Supreme Court’s ruling on May 12, 2011, involved a case in which an Evansville man blocked and then shoved a police officer who tried to enter his home without a warrant after the man’s wife called 911 during an argument. The man was shocked with a stun gun and arrested.

His wife told officers her husband hadn’t hit her, but he was convicted of resisting law enforcement. The justices narrowly upheld that conviction.

Following the decision, penned by David, opponents sent a blizzard of emails to state officials, protested at the Statehouse and threatened the justices.

Lawmakers also reacted strongly, passing a bill this year that specifies that the state’s self-defense law shelters residents who reasonably believe force is necessary to protect themselves, someone else or their own property from unlawful actions by a public servant. Gov. Mitch Daniels signed the bill in March.

“Even if you disliked his decision, the law has changed, so the decision is moot,” Downs said.

David was appointed to the court by Daniels about two years ago. If retained, David won’t face another retention vote for 10 years. He is one of two state Supreme Court justices up for retention this November.

Schumm said people shouldn’t base their vote on a single ruling.

“Overall, I think his decisions have been very mainstream, middle of the road,” Schumm said. “I hope that people can consider the body of what he’s done.”

Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)

William and Janice Boyd challenge the State’s acquisition of their property for use in constructing Interstate 69 through southwest Indiana.

They contend that various federal environmental statutes applicable to federally-assisted projects have not been satisfied. Compliance with these environmental protections is reviewable during both administrative and judicial proceedings at various stages of a project. State and federal agencies and the courts have found I-69 in compliance at multiple steps along the way.

Because none of the Boyds’ claims are justiciable in eminent domain proceedings, we affirm the taking.

Appellant-defendant David E. Lyons appeals his convictions for five counts of Child Molesting,1 a class A felony. Specifically, Lyons contends that his convictions must be reversed because fundamental error occurred when a child psychologist was permitted to testify about various characteristics and behaviors that are common in child sexual abuse victims. Finding no error, we affirm the judgment of the trial court.

Ind. Gov't. - "Ethics complaint debated in Floyd"

In response to a resident’s concerns, the Floyd County Council agreed Tuesday night to examine if it was proper for county government to pay $27,539 for a law firm to handle an ethics grieveance against Floyd County Prosecutor Keith Henderson.

Joseph Moore, of Georgetown, asserted that Henderson told the commissioners last year that the money would be used to fight his removal from the David Camm triple-murder case. Moore asked the council to recover the money and to launch an investigation. * * *

Council President Ted Heavrin asked council attorney Lee Cotner to meet with the state Board of Accounts to sort out whether the payments were appropriate. * * *

Starting in May 2011, according to Floyd County records, the law firm Frost, Brown Todd in Indianapolis billed Henderson $27,539 for handling the ethics grievance. One bill in July 2011 for $4,096 mentioned analysis of alleged rule violations, review of case law on prosecutorial misconduct and correspondence with G. Michael Witte, executive secretary to the disciplinary panel. * * *

In most instances when someone, usually an inmate, files an ethics complaint against him, Henderson said, he responds on his own. But because of the high profile nature of the Camm case, he said, he felt it reasonable to engage legal counsel to respond.

Many counties carry insurance to cover legal costs to defend elected officials in such instances, but Floyd County doesn’t have it and probably should, Henderson said, adding that a similar issue came up recently for the prosecutor in Dearborn and Ohio counties.

“Any public official should be covered” by legal insurance because it would be unfair to expect them to defend themselves in their official roles, Henderson said.

“It would set a very dangerous precedent to force publish officials to defend themselves. They (Camm’s lawyers) wanted me off the case,” and the ethics filing was part of the legal strategy to get that accomplished, he added.

ILB: The ILB thought that it was the Attorney General's office that defended the prosecutors ...

Former Merrillville Town Court clerk Virlissa Crenshaw pleaded guilty to stealing $176,763 in funds from the town and a filing a false tax return at a Wednesday morning hearing at the U.S. District Courthouse in Hammond. * * *

Crenshaw, an East Chicago resident, was charged last week with stealing cash bonds that were posted by criminal suspects in 2008, as well as misstating her income on her 2009 tax return.

The tax loss to the United States was $55,203 since she stated her income as $43,606 when it was much higher.

She has signed a plea agreement with prosecutors that she will admit to both charges in exchange for the government promising not to prosecute her husband on federal tax charges and recommending she serve the minimum sentence.

Crenshaw could face a maximum of 13 years in prison. The judge will decide whether to accept Crenshaw’s plea agreement at her sentencing hearing, which has not been scheduled.

Assistant U.S. Attorney Philip Benson listed some of the evidence the government has against Crenshaw if she chose to take the case to trial.

Benson mentioned that an attorney was attempting to get back the bond money his client had posted, but Crenshaw kept delaying and she eventually admitted to taking the money.

In a lawsuit filed by the state to reclaim the missing money, it alleges that Crenshaw would sometimes use bond money from one defendant to cover the missing bond of another defendant in order to cover her tracks.

The attorney notified Town Court Judge Gina Jones, who referred the case to the Indiana State Police and State Board of Accounts for investigation.

The SBOA audit found $310,325 in missing bond payments, traffic tickets and ordinance violations, and said there could have been more money missing but some receipts had been shredded.

Courts - Parts 1 and 2 of a 3-part series on a broken state court system

For decades now, but especially over the past two years, coinciding with the election of Tea Party officials in the 2010 midterm elections, conservative lawmakers in state houses around the country have systematically sought to undermine the power, authority, and independence of their judicial branch colleagues. Recently, some of this was tied to passionate opposition to the Affordable Care Act. Some of it comes from old-fashioned hatred for so-called judicial "activists" on the bench. But at the root of all of it is a deeply-felt philosophy, one which goes back to Jefferson, that an "independent" judiciary should never really be too independent.

In part, this legislative offensive has focused on restraining the authority of state judges to perform core judicial functions. So conservatives in Missouri sought to preclude their judges from enforcing the Affordable Care Act. In Kansas, Tea Party forces moved to prohibit state judges from citing "foreign law" in their rulings. Lawmakers in Louisiana sought to protect gun rights even further by requiring state judges to evaluate gun restrictions using only the strictest form of judicial review. In the same vein, legislators in New Jersey pushed a measure that would have given them "override" power over state court decisions.

If you live in the battleground state of Florida, and you've watched television in the past few weeks, you may have seen a campaign advertisement designed to convince you that there is something terribly wrong with the Florida Supreme Court. "Our own supreme court denied our right to choose for ourselves," the off-screen narrator laments. The ads began airing statewide just four days after the Florida Republican Party decided that it would oppose three of the state justices in their retention bids. That move came as a surprise to many in the Sunshine State. The Miami Herald headline (and subhead) on September 21 pretty much say it all: "In Surprise Move, Florida GOP opposes Supreme Court justices' retention in November: In a unanimous vote of its board, the Florida Republican Party took the unprecedented move Friday of opposing three Supreme Court justices because of a nine-year-old ruling in a murder case."

When the Star's subscription prices went up on Sept. 1st I decided not to renew my monthly home delivery subscription and so did not send in a payment for Sept.

The Star kept sending the paper anyway. They did not send a payment reminder. I looked online but there was no way to cancel online.

The Star continued sending papers through the month of Sept. I assumed at some early point they would stop, as the site says that "we will continue to deliver and send payment notices for a short period of time after the expiration date."

When I got the Oct. bill in mid-Sept. it was for both months. I wrote "PLEASE CANCEL" on it in big letters and mailed it in. The paper kept coming.

Yesterday I received a bill in the mail for three months - Sept. through Nov. - now totaling nearly $75.

I called the number on the bill. I got a phone tree and eventually got to select the option to discontinue service. Then I was put on hold for many minutes.

Finally, a customer service person answered. I asked to discontinue my subscription effective Sept. 1. I explained that I had not signed up for an automatically renewing account, but they kept sending the paper anyway. I pointed out that I had returned my Oct. invoice marked "CANCEL eff. Sept. 1."

I was told that payments went to a separate payment center and so the notice I had mailed was ineffective. My protestation that I never signed up for a self-renewing account was dismissed. I was told that it was my obligation to cancel by phone, that there was no other way to cancel my subscription, and that I owed them until the day I called and cancelled.

[Updated] A reader writes:

I am still getting the paper after I cancelled. However, I get letters inviting me to come back.

Suffering from a degenerative
disc disorder and pain in various parts of his body,
Charles R. Kastner sought disability insurance benefits
under 42 U.S.C. § 423(d). He asserts that his disorder of
the spine constitutes a disability under the Social
Security Act. An administrative law judge (“ALJ”) determined
that, though Kastner’s impairments are severe,
they do not meet listed requirements for a presumptively
disabling condition and that Kastner has residual capability to perform certain jobs in the economy. After
the Appeals Council denied review, Kastner sought
judicial review of the denial of disability benefits, and
the district court affirmed the decision of the Commissioner
of Social Security. Because we conclude that the
ALJ did not adequately explain why Kastner had not
met the requirements for a presumptive disability, we
reverse the judgment of the district court and remand
for further proceedings.

Ind. Decisions - Court of Appeals issues 2 today (and 8 NFP)

May a court order a parent to make a child available for an interview requested by the Indiana Department of Child Services (“DCS”) to assess that child’s “condition” pursuant to Indiana Code Section 31-33-8-7, where the child’s older sibling has made and then recanted allegations of sexual abuse against a family member who lives in the children’s home? The trial court in this case answered that question in the affirmative, and we agree. * * *

BAILEY, J., concurs.
RILEY, J., dissents with opinion. [which begins, at p. 12 of 16] I respectfully disagree with the majority’s opinion to affirm the trial court’s order to make G.W. available for a forensic interview at Susie’s Place in Bloomington. In reaching its decision, the majority equates the DCS’s request for a forensic interview of a child who is not the subject of an abuse investigation with the statutory requirement that the DCS’s assessment must include “[t]he names and conditions of other children in the home.” I.C. § 31-33-8-7(a)(3) (emphasis added). Specifically, the opinion interprets “condition” as encompassing the possibility to subject the other children in the home to an invasive forensic interview. * * *

Even though G.W.’s sister made an initial allegation of sexual abuse, she has since recanted and clarified that she had been angry with Mother for not spending as much time with her. She has denied making the diary entries alluding to sexual intercourse and the DCS has not established any evidence that G.W.’s sister wrote the entries. Rather, DCS has conceded that the diary entries could have been written by anyone. Despite the recantation and lack of evidence, DCS still wants to subject G.W. to an intrusive forensic interview in a strange environment by unknown interviewers merely to clarify some inconsistencies in how her sister originally reported the alleged abuse. Without good cause to believe that G.W. may be at risk for sexual abuse and without statutory grounds to grant DCS’s motion, I find the motion to compel Mother to subject her minor child to a forensic interview to be an impermissible extension of DCS’s authority. I would reverse the trial court’s order.

Tim L. Godby, pro se, appeals the denial of his motion to correct erroneous sentence. He presents four issues on appeal, which we consolidate and restate as the following issue: Did the trial court properly deny the motion to correct erroneous sentence? We affirm. * * *

Ind. Code Ann. § 33-37-2-2 (West, Westlaw current with all 2012 legislation) makes clear that costs imposed in a criminal action “are not part of the sentence”. Because the error in this case relates only to costs (and not fines), we conclude that Godby’s belated attempt to correct the error through a motion to correct erroneous sentence is not proper. In other words, the error here does not relate to a provision of Godby’s sentence and is not the type of fundamental sentencing error contemplated by I.C. § 35-38-1-15. See Beliles v. State, 663 N.E.2d 1168, 1173 (Ind. Ct. App. 1996)(“procedures to correct an erroneous sentence under I.C. 35-38-1-15 should be limited…to those fundamental sentencing errors where sentences have been entered in violation of express statutory authority or an erroneous interpretation of a statutory penalty provision”). The trial court properly denied Godby’s motion to correct erroneous sentence.

Courts - Still more on "Federal Judges Rule for Judges on Pay"

Updating this ILB entry from October 7th, Alison Frankel's column On the Case reports on the en banc appeals court in Beer v. United States in a lengthy article headed "Federal Circuit: Congress can't renege on pay promises to judges."

Ind. Courts - Bei Bei Shuai hearing today

Defense lawyers Wednesday will try to persuade a judge to exclude the testimony of the pathologist who performed the autopsy from Bei Bei Shuai's murder trial.

Shuai's attorneys claim in court documents that a medication given to Shuai could have mimicked the effects of rat poison. They also claim the pathologist never considered any alternative cause of death, but the doctor who treated the baby testified there were other possibilities.

Tuesday, October 09, 2012

Ind. Decisions - Federal court ruling today holds the right to be issued a photo ID needed to vote, marry and adopt children is a property right protected by the 14th amendment

In Worley v. Waddell, Comm. of BMV (SD Ind.), a 12-page order issued late this afternoon, Judge Barker rules that the right to be issued a photo ID needed to vote, marry and adopt children is a property right protected by the 14th amendment and that before being finally denied a photo ID, Mr. Worley must be given a due process hearing to establish his identity through some means other than by producing the documents the BMV requires, which documents the BMV found to be inadequate because of the name discrepancy. Some quotes:

Pursuant to 42 U.S.C. § 1983, Plaintiff has filed this lawsuit for declaratory and
injunctive relief as a result of the refusal by Defendant, the Indiana Bureau of Motor
Vehicles ("the BMV"), to issue Plaintiff a photo identification card I in the name under
which he currently lives: Joesph A. Worley. Plaintiff contends that the BMV's
unwillingness to issue him an Indiana photo identification card violates the Fourteenth
Amendment to the United States Constitution. He specifically invokes the Due Process
Clause of this amendment, which forbids "any State [ from] depriv[ing] any person of life,
liberty, or property, without due process of law." U.S. Const. Amend. XIV, § 1.
* * *

Our review of the record
indicates that Mr. Worley cannot avail himself of the appropriate state law remedy, which
is completion of the name change process detailed in the Indiana Code. In making this
determination, the Court takes judicial notice of In re Name Change of Herron, No.
49A02-1205-MI-00364 (Marion Cir. Ct. Apr. 10,2012), and In re Name Change of
Resnover, No. 49-C01-1110-MI-040823 (Marion Cir. Ct. Apr. 4, 2012). Both of these
cases involved a similar situation to the case at bar. Specifically, the plaintiff in each case could not obtain a valid Indiana driver's license due to discrepancies between the names
listed on his Social Security card and birth certificate. Despite the fact that appeals have
been filed in these cases and reportedly still pend, both decisions read section 34-28-1-1 et
seq. of the Indiana Code in conjunction with section 34-28-2-1 of the same to bar the
plaintiff's otherwise legitimate petition for a name change. With no markedly different
facts in the instant lawsuit, we cannot conclude that Mr. Worley would be more fortuitous
in pursuing the same end. The prescribed state law remedy, although generally
acceptable, fails to afford Mr. Worley full protection for important interests. For this
reason, a hearing is necessary.

We recognize that the BMV's stated interest underlying these regulations is '
preventing voter fraud; as such, it is a strong and legitimate concern which we in no way
wish to diminish. However, this interest, in our view provides further justification for a
Fourteenth Amendment due process hearing. The exigency of holding such a hearing is,
of course, obvious, given the upcoming November elections. Accordingly, the BMV is
hereby ordered to conduct forthwith an evidentiary hearing during which Mr. Worley shall
set forth the reasons he believes he should be granted a photo identification card. At the
same time, the BMV will be permitted to conduct its own review of whether or not Mr.
Worley's conduct is fraudulent or otherwise improper. The hearing and the decision by
the BMV must occur with all due haste and, in any event, prior to the November 6th
elections. All other facets of this lawsuit are stayed pending the outcome of this hearing.
If Plaintiff is determined to be eligible to receive the state-issued identification card he seeks, the Court's delay in issuing this order to a time after the October 9th voter
registration deadline shall not foreclose Plaintiff's ability to vote in the upcoming
November elections based on his failure to register in a timely fashion. That said, when
and if the BMV issues the identification document to Plaintiff, the issuance shall also
effectuate his registration to vote. [emphasis by ILB]

Law - For Medicare patients, being formally admitted for a hospital stay makes a big difference; the same stay classed as "for observation" may cost the patient $$$$ more

This AARP article by Patricia Berry is headed "Medicare: Inpatient or Outpatient? Staying in the hospital without being formally admitted can cost you thousands of dollars." Some quotes:

Most patients would regard as meaningless the seemingly slight distinction between the two labels — after all, they're getting exactly the same kind of care. But it can have costly consequences.

Under the rules, Medicare picks up the whole tab for the first 20 days of skilled nursing for rehab or other care in an approved facility, but only if someone has spent at least three full days in the hospital as an admitted patient. If instead a patient has been under observation — for all or part of that time — he or she is responsible for the entire cost of rehab.

The suit alleges that the practice of putting patients in observation status not only denies them coverage for post-hospital rehab care, so they must either pay the nursing home's full bill — more than $30,000 in the case of two plaintiffs — or forgo treatment. It also classifies them as outpatients while they're in the hospital. Therefore, their Medicare coverage comes not under Part A (hospital insurance) but Part B (which normally covers doctors' services and outpatient care). For some patients, this can also mean paying more out of pocket — especially if they need prescription drugs that, in this situation, would be covered under Part B and not under Part A or even the Medicare Part D drug benefit. * * *

The lawsuit calls for observation status to be abolished — or at least for patients to be notified in a timely fashion of their status and given the opportunity to make a swift appeal against the decision. Some of the center's clients reported stays of up to 14 days in observation.

As to why this practice is expanding:

[M]any experts suggest that hospitals are placing more and more patients under observation to protect themselves against new policies that penalize hospitals for unnecessary admissions and frequent readmissions of the same patient.

In an effort to rein in spiraling costs, Medicare is now taking a tougher line with hospitals, sending auditors to investigate not only fraud but also cases in which the agency thinks that "medically unnecessary" hospitalizations have occurred. Also, to improve the quality of care, Medicare will soon start penalizing hospitals that readmit patients in less than 30 days — raising the question of whether hospitals might label people as observation patients so that they cannot be counted as readmissions if they happen to return. * * *

Meanwhile, under the status quo, hospitals are allowed to place patients in observation at any time during their hospital stay — even retroactively. Hospital staff only are required to inform patients of their status before they leave the hospital.

The long story concludes with measures the patient or advisor can take.

Ind. Law - Indiana Tech "Law School Ridiculed For Opening In The Middle Of History's Worst Law School Crisis"

That is the headline from a story today by Aleksi Tzatzev in the Business Insider. It begins:

A new law school is opening its doors in Indiana in 2013, and it wants you to enroll even though it isn't accredited yet and the tuition is nearly $30,000 per year.

Prospective students are already up in arms on the Top Law Schools blog, ridiculing Indiana Tech Law School for looking like more of a diploma mill than a law school, Inside The Law School Scam blog pointed out.

Ind. Gov't. - "2013 budget OK'd for Clark County"

County government has been in a fiscal crisis for more than two years, and it was sued in 2011 by the county’s judges and sheriff, who sought money to keep their departments operating through the end of last year. Settlements in those suits totaled more than $4.2 million.

No such mandates have been handed down this year, and council members have said they hope to avoid more costly court battles, even though they know it’s a good possibility again this year.

“Each department is state-mandated to be funded, and over half of those departments have the authority to seek a court mandate for funding,” Lenfert said.

Earlier this year, the county appealed to the Indiana Tax Court, asking it to overturn a Department of Local Government Finance decision in late 2010 that rejected a special property tax increase the county requested to solve the budget problems created by the council’s 2007 decision that resulted in a $2.7 million reduction in property taxes.

The question to the court centers on whether it was an intentional council decision to ease the burden on taxpayers or if it was a mistake by council members who didn’t realize the financial impact.

County Council attorney Scott Lewis said the county had a hearing in February, but the Tax Court hasn’t yet ruled in the case.

Environment - "IDEM recently offered to settle a 2½-year-old water pollution complaint against a pork producer for a penalty of $1,000 and the planting of 550 to 600 trees"

That is how a long story today in the Muncie Star-Press, reported by Seth Slabaugh, begins. More from the story, bylined Winchester:

State officials say Aaron Chalfant Farms, 6616 N. Randolph County Road 500-W, sprayed 200,000 gallons of hog manure onto a field upstream of a major fish kill during rainy weather in June of 2010. An estimated 107,650 fish died.

“IDEM sent a proposed agreed order to Aaron Chalfant Farms,” IDEM spokesman Barry Sneed said. “Because it is deliberative, we cannot discuss the details until it is signed. We do expect to receive the signed copy soon, barring any unforeseen circumstances. Once it is signed and returned to IDEM, the agreed order will be official.”

A copy of the proposed agreed order obtained by The Star Press calls for a civil penalty of $5,000, with $1,000 of that to be paid to the state’s environmental management special fund.

In lieu of paying the remaining amount, Chalfant must plant a buffer of 550 to 600 trees to significantly reduce air emissions, including particulates and odor, from his livestock facility (4,000 swine).

The agreed order, dated Sept. 18, does not implicate Chalfant in the fish kill.

But there is also a separate Indiana Department of Natural Resources case against Chalfant Farms, Sneed said.

Allen County voters will not elect any judges this year, but Hoosiers statewide will decide whether two Allen County natives remain on the state’s highest courts. In all, two Indiana Supreme Court justices and four Court of Appeals judges face retention votes on the Nov. 6 ballot.

Much of the attention will center on Allen County native Steven David, who joined the Supreme Court in 2010 and drew much criticism after writing his first ruling in 2011. David was in the 3-2 majority that determined Hoosiers have no legal right to block or resist police officers entering their homes, even if the entry is illegal. Many Hoosiers objected to his ruling and promised to vote against him, and some websites and a Facebook page focus on opposition.

Hoosiers should be careful, though, not to oust judges because of a single ruling, as voters in Iowa did after that state’s highest court ruled in favor of same-sex marriage. And they should keep in mind two other justices joined David in the decision.

The other justice facing a retention vote is the second most-senior justice, Robert Rucker, a 1999 appointee who dissented in the police-entry case.

The four appeals court judges facing retention include former Allen Superior Court Judge Paul Mathias, an appeals judge since 2000.

Ind. Decisions - Court of Appeals issues 6 today (and 9 NFP)

We restate the dispositive issues before us as:
I. whether Rowe is entitled to pursue monetary damages against the Defendants under either 42 U.S.C. § 1983 or the Religious Land Use and Institutionalized Persons Act (“RLUIPA”); and
II. whether there is a genuine issue of material fact precluding summary judgment on Rowe’s claims under RLUIPA. * * *

Questions concerning diets for prisoners allegedly mandated by their religious beliefs have generated a voluminous amount of federal litigation. The federal courts of appeal have held that “a prisoner’s religious dietary practice is substantially burdened when the prison forces him to choose between his religious practice and adequate nutrition.” Nelson v. Miller, 570 F.3d 868, 879 (7th Cir. 2009) (citing Love v. Reed, 216 F.3d 682, 689-90 (8th Cir. 2000) & McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987)). The key question in this case, therefore, is whether Rowe’s desire for a kosher meal plan was motivated by a sincerely held religious belief, “rather than a preference for the way a given diet tastes, a belief that the preferred diet is less painful for [some] animals, or a prisoner’s desire to make a pest of himself and cause trouble for his captors.” Vinning-El, 657 F.3d at 594. If Rowe is so motivated, then the DOC is required to provide him with kosher meals, particularly given that the Defendants make no argument that there is a compelling state interest in not providing them. * * *

The Defendants have not established as a matter of law that Rowe lacked sincere religious reasons for requesting a kosher diet. Although the sincerity of Rowe’s adherence to “Identity Christianity” and his need for a kosher diet arguably could be eyebrow-raising, such sincerity, or lack thereof, is a question of fact. See Beebe, 749 F.Supp.2d at 594-95. The Defendants also make no argument that they have a compelling governmental interest in refusing to provide a kosher diet to Rowe. As such, the Defendants were not entitled to summary judgment on Rowe’s RLUIPA claims.

For similar reasons, we decline to direct that summary judgment be entered in Rowe’s favor on this point, as he requests. We decline to rule, as a matter of law and based on a paper record, that he is definitely sincere in his beliefs. In other words, there is a genuine issue of material fact regarding the sincerity of Rowe’s religious belief that he is required to eat only kosher meals that are certified as uncontaminated by “forbidden” foods. We reverse the grant of summary judgment against Rowe on his claims under RLUIPA and remand for further proceedings on those claims.

In this case, a city passed an ordinance annexing additional territory, which a group of landowners vigorously oppose. Indeed, this is the second time that these litigants have been before a panel of this Court. The issue presented to us this time is how to count State-owned parcels of land that now form State-owned right of ways. The trial court concluded that the parcels should be counted individually. We conclude that this was error, inasmuch as it undermines the General Assembly’s intent to provide a mechanism for landowners to oppose annexation.

Appellants-plaintiffs American Cold Storage et al., (collectively, “the Landowners”) appeal the trial court’s ruling dismissing their challenge to an annexation by the appellee-defendant City of Boonville (Boonville) for lack of subject matter jurisdiction. Specifically, the Landowners argue that the trial court erred by individually counting the State-owned parcels that are now State Road 62 rather than counting State Road 62 as a single piece of real estate. According to the Landowners, counting each individual parcel that is now part of a state highway diluted the percentage of signatures necessary to oppose the annexation.

Boonville cross-appeals arguing that the Landowners have waived this issue because it was available to them during the first appeal and they failed to raise it. Declining to find waiver and concluding that the trial court erred by counting each individual parcel that was acquired to build what is now State Road 62, we reverse and remand for further proceedings consistent with this opinion. * * *

ROBB, C.J., concurs.
BRADFORD, J., dissents with opinion. [that begins at p. 14 of 18] First, I would accept Boonville’s argument that the question of how the State-owned parcels should be counted has been waived. Second, I would conclude that the parcels owned by the State should be treated no differently than any other parcel for purposes of the 65% rule of the remonstrance statute. Consequently, I respectfully dissent.

Appellants/Plaintiffs Thomson Inc. n/k/a Technicolor USA, Inc., Technicolor, Inc., and Technicolor, Ltd. (collectively, “Thomson”) appeal from the trial court’s judgment in favor or Appellee/Defendant XL Insurance of America, Inc. As restated, Thomson contends that (I) full faith and credit does not require that Indiana courts respect a California trial court’s decision that California law applies to certain insurance policies XL sold to Thomson (“the California decision”), (II) comity does not favor deference to the California decision, and (III) Indiana’s choice-of-law rules require the application of Indiana law to the policies at issue. Concluding that the trial court did not abuse its discretion in applying the principles of comity, we affirm on that basis, and do not reach Thomson’s other arguments.

BAKER, J., concur.
BRADFORD, J., dissents with opinion. [that begins at p. 12 of 13] I agree with the majority’s statutory interpretation that an on-duty personal injury that exacerbates a pre-existing medical condition can “direct[ly] result” in a Class 1 covered impairment under Indiana Code section 36-8-8-12.5(b)(1). However, because I do not believe Paul Bryson’s covered impairment satisfies that standard, I respectfully dissent.

We conclude that a vehicle can be a “place” as contemplated by the criminal recklessness statute. Further, we have no difficulty holding that a vehicle can be a “place where people are likely to gather.” A vehicle, which can transport people, is clearly a location where people could congregate and gather. We conclude that, under Indiana Code Section 35-42-2-2, a vehicle can be unambiguously included as a “place where people are likely to gather.” As a result, the trial court properly denied Garcia’s motion for directed verdict.

Travis Koontz appeals the trial court’s denial of his motion to correct erroneous sentence. He raises one issue for our review, which we restate as whether the trial court erred in denying his motion when his sentence is, on its face, erroneous for exceeding statutory authority. Concluding that Koontz waived any error in his sentence by consenting to the sentence as part of a plea agreement, we affirm. * * *

BRADFORD, J., concurs.
BAKER, J., dissents with opinion. [that begins, at p. 9 of 11, and concludes] Nevertheless, Koontz was exposed to a combined term of imprisonment and probation that exceeded statutory limits. Accordingly, in cases where the offenses are misdemeanors or minor felonies, the potential for abuse could be too great to justify permitting the imposition of illegal sentences through plea agreements. Therefore, I would reverse.

Ind. Decisions - Transfer list for week ending October 5, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

One transfer previously granted, in St. Joseph Hospital v. Richard Cain, was vacated and denied. The COA opinion was reinstated. See details here, in this Oct. 2nd ILB entry.

Review of one transfer petition was dismissed as premature. That case is Fresenius USA Marketing v. Indiana Department of State Revenue. Specifically, the Court's order reads:

BEING DULY ADVISED, THE DEPARTMENT'S PETITION FOR REVIEW
FILED ON SEPTEMBER 20, 2012, IS DISMISSED AS PREMATURE, WITHOUT
PREJUDICE TO THE DEPARTMENT'S RAISING THE ARGUMENTS THEREIN
IN A LATER TIME. DISMISSAL OF THE PETITION FOR REVIEW RENDERS
MOOT THE OTHER RELIEF REQUESTED BY FRESENIUS.
BRENT E. DICKSON, CHIEF JUSTICE OF INDIANA

Law - "Undocumented Life Is a Hurdle as Immigrants Seek a Reprieve"

Long article in the Oct. 3rd NY Times, reported by Kirk Semple, on the recent "Consideration of Deferred Action for Childhood Arrivals Process," put into place by an Executive Order in June, and the problems of documenting an undocumented life. "Applicants to a new program must prove that they entered the country as children and that they have lived here since 2007, among other requirements. Many cannot." More:

Since President Obama announced the program in June, illegal immigrants across the country have been scrambling to collect evidence to qualify.

Their challenge is this: How do you document an undocumented life?

Applicants must prove that they were brought to the United States before they turned 16; that they have lived here continuously for the past five years; and that they were in the country and were under age 31 on June 15. They must show that they are enrolled in school or have graduated from high school or received an equivalent G.E.D. certificate, or have been honorably discharged from the military. An immigrant who poses a threat to national security or has been convicted of a felony, a serious misdemeanor or three minor misdemeanors will be rejected.

Some illegal immigrants have lived lives nearly indistinguishable from those of citizens, amassing school transcripts, medical records and bank statements. But many have remained under the radar, appearing rarely, if at all, on official or business records.

To take part in the program, many have had to retrace their often-circuitous and sometimes clandestine paths in the United States. Some have had to take the uncomfortable step of calling former employers to request affidavits attesting to their prior arrangements — at the risk of placing those employers in legal peril.

Law - "Research Is Hampered by New Limits on Death Records"

A shift last year by the Social Security Administration to limit access to its death records amid concerns about identity theft is beginning to hamper a broad swath of research, including federal government assessments of hospital safety and financial industry efforts to spot consumer fraud. * * *

The Social Security Death Master File is an index of 90 million deaths that have been reported to the agency over 75 years by survivors, hospitals, funeral homes and state offices. The listings include names, Social Security numbers and dates of death.

The agency did not make the information public until 1980, after a legal ruling required that the data be disclosed. The list is updated weekly, and although it is neither comprehensive nor 100 percent accurate, it is considered the most current record of deaths nationwide, making it a rich trove for researchers.

It is also far more affordable for researchers than the leading alternative, a death index kept by the federal Centers for Disease Control and Prevention that, while more complete, is typically 14 months to 18 months out of date.

For a decade, the Social Security master file routinely included records provided by the states. But last year, after reports that the widespread availability of death records was facilitating identity theft, the Social Security Administration determined that it had been improperly releasing the state records as part of the file.

Under a 1983 law, the agency concluded, those state records — but only those records — were exempted from public disclosure. They could, however, be made available to other federal agencies, like the Internal Revenue Service and the Centers for Medicare and Medicaid Services, that needed them to determine whether to pay or discontinue benefits.

As a result, four million deaths were expunged from the publicly available master file last November. Social Security officials expect the number of deaths disclosed each year — 2.8 million were made public in 2010 — to decrease by one million.

Monday, October 08, 2012

Law - "Legal Events to Watch This Week"

Courts - "SCOTUS to review a Virginia case that could put a stop to the increasing balkanization of state freedom-of-information laws"

Tony Mauro reports today for the First Amendment Center in a story that begins:

At issue in McBurney v. Young is a provision of the Virginia FOI law that limits access to state documents under the law to Virginia residents — though it makes an exception for out-of-state news outlets that circulate or broadcast within the commonwealth. A growing number of other states, including Arkansas, Tennessee, New Hampshire and Georgia, have similar provisions or policies restricting access to state residents only.

News organizations and good-government groups have joined the case to make a strong argument that the law impedes reporting and public accountability. But they, the plaintiffs and other participants in the case have also framed the law as an infringement on the national “information industry” — potentially a winning argument before a pro-business Court.

The suit was brought by two non-Virginians: Rhode Island resident Mark McBurney, who was seeking Virginia documents to support his claim that the state bungled enforcement of a child-support order against his wife, and Roger Hurlbert, a Californian whose business of obtaining real estate documents for private clients was thwarted by the Virginia law.

They claim that the Virginia-only provision of the law violates two parts of the Constitution: the privileges and immunities clause, which aims to put citizens of all states on an equal footing, and the so-called dormant commerce clause, which bars discrimination against interstate commerce.

Courts - More on "G.O.P. Aims to Remake Florida Supreme Court"

Updating this ILB entry from October 3rd, this story from this weekend in the Miami Herald is headed: " Fla. Supreme Court justices fight back to retain seats: Florida’s Supreme Court justices have learned the art of brass knuckle politics as a merit retention fight heats up." Here is a sample from the long story:

The justices have now rid their robes to play politics in response to what has become the most politically-charged merit retention election in state history. They are fighting for their judicial lives as they fend off attacks from several conservative groups who want them booted from the high court’s bench.

In Florida, tea party groups and the Republican Party of Florida are targeting justices, with one conservative group even financing television ads.

To combat the attacks, the justices have hired political consultants, created web sites and established political committees to raise money. Their supporters have raised at least $330,000 for each justice — more than most candidates running for the state House.

The once sleepy, non-partisan, merit retention campaigns are now expensive political battles.

“We had to speak out and educate, otherwise the attacks would go unanswered,’’ Quince explained to voters at a forum at Florida State University College of Law on Friday.

Unlike other politicians, who can defend themselves against criticism, the judicial canons in Florida prohibit justices from soliciting donations and they often cannot talk about the cases for which they are being condemned.

“It’s like having two hands tied behind your back and one leg,’’ said Pariente, a 15-year veteran of the court. “We’re not politicians. All we can promise to do is be fair and impartial.”

To do their talking and raise their money, the justices have created “Committees of Responsible Persons.” For the first time ever, a 527 — a tax-exempt political organization — has also been formed to run television ads in their defense.

Ind. Courts - "Local cases point out dangers of Internet: Portability of devices adds to risk for kids"

In Sunday's Fort Wayne Journal Gazette is a long story by Rebecca S. Green, using as its focus two local cases of sexual exploitation of children who are online. Some quotes:

[T]wo recent local criminal cases have generated conversations and concern, and they have put renewed emphasis on the need for parents or guardians to pay attention to how students use the technology – regardless of whether it came from the home or school.

According to federal court documents, Nathan Hasty set up phony Facebook accounts, portraying himself as both a teenage boy and a teenage girl.

Using those identities, Hasty, a 34-year-old Huntington man who until the criminal investigation was a Campus Life director for Fort Wayne Area Youth for Christ, solicited naked pictures from 12- to 14-year old boys in his youth group.

Hasty flirted and cajoled, gave them phone numbers where they could text pictures of themselves and in some cases asked them to perform sex acts in front of a Web camera, according to court documents.

When FBI agents knocked on his door in late September, Hasty admitted to using the fake Facebook accounts, saying he communicated with more than 10 boys and had targeted children who were members of his youth groups, according to court documents.

He worked for Fort Wayne Area Youth for Christ at Huntington’s Crestview and Riverview middle schools.

Hasty remains in the Allen County Jail, held on federal charges related to the possession of child pornography. If convicted of the charges, he faces no less than five years in prison. The matter remains under investigation, and since news of Hasty’s arrest broke, other families have surfaced and reported potential contacts with Hasty to the local office of the FBI.

Meanwhile, about 50 miles north in DeKalb County, 29-year-old Jason Lee Schwartz faces a host of state charges, both felonies and misdemeanors, accusing him of multiple sexual contacts with young girls.

Among the 22 charges, Schwartz is charged with child molesting, sexual misconduct with a minor, possession of child pornography and tattooing a minor.

According to court documents, Schwartz texted girls as young as 13, gave some teens tattoos in exchange for sex and threatened to publish naked photographs of the girls on Facebook if they did not comply with his demands for sex.

A panel of federal judges has issued an order consolidating all Biomet hip implant lawsuits over the M2a Magnum hip system to the U.S. District Court for the Northern District of Indiana, Morgan and Morgan reports. * * *

The lawsuits against Biomet (*MDL No. 2391 - In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation) are alleging that the implant’s metal-on-metal design is defective, as it can lead to premature failure and metallosis, said to be caused by the high levels of metal ions generated from the implant’s metal components. This hip implant is not the only device that has been linked to these problems. According to a July 12, 2012 article published by Fox News, other total hip replacement manufacturers, including Depuy, Wright Medical and Zimmer Holdings, face similar complaints.

Ind. Decisions - "Spotlight on the use of force"

The South Bend Tribune this weekend published this editorial from the Oct. 4th Anderson Herald Bulletin. Some quotes:

When police officers pursue resisting suspects, they should have the license to use necessary means to subdue the offender. But they should not exceed those means to take punitive measures against such suspects.

The question of where the line is drawn between "necessary" and "punitive" is the crux of an Anderson case recently considered by the Indiana Court of Appeals.

In 2008, Marquis Brooks filed a complaint against the city, claiming he had been subjected to "intentional tortuous conduct" when he was arrested in December 2006 after an incident at a local teen club. Shots were fired and Brooks and other teens fled the scene. After crashing a car into a house, Brooks fled on foot and hid in a shed, where he ignored officers' commands to give himself up. When officers entered the shed, according to Brooks, he put his hands up and told them we was surrendering. But a struggle ensued, during which Brooks was bitten in the scrotum by a police dog.

Brooks was not implicated in the shooting, but he was charged with under-age drinking, possession of marijuana and driving on a suspended license.

Brooks' 2008 complaint against the city was dismissed in 2010 via summary judgment by Circuit Court 1 Judge Rudy Pyle (now with the Court of Appeals).

But the court of appeals recently overturned that ruling.

There is a genuine issue of material fact as to whether the officer used excessive force when he permitted his K-9 partner, Rex, to apprehend Brooks, Appeals Judge John Baker wrote.

[W]e conclude that there is a genuine issue of material fact as to whether Officer Barnett used excessive force when he permitted his K-9 partner, Rex, to apprehend Brooks in such a manner that Brooks sustained a severe scrotal laceration. Indeed, even to answer this ultimate question, the fact-finder will be confronted with other factual questions, such as whether Officer Barnett gave a proper warning before entering the shed, whether Officer Barnett had a reasonable belief that Brooks was armed, whether Brooks immediately surrendered when the police entered the shed, and whether Brooks was already secured when Rex was permitted to bite Brooks’s scrotum after biting his arm, just to name a few. But this only bolsters our conclusion that summary judgment was inappropriate under these facts and circumstances. Accordingly, we reverse the trial court’s order granting the Appellees’ motion for summary judgment and remand for further proceedings. Reversed and remanded.

ROBB, C.J., concurs and BRADFORD, J., concurs in result without opinion.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (10/8/12):

Thursday, October 11th

9:00 AM - Brandy L. Walczak, et al. v. Labor Works – Fort Wayne, LLC, et al. (02S04-1208-PL-497) - In this wage dispute, the trial court awarded summary judgment to Labor Works based on the court’s determination that Walczak’s complaint was governed by the Wage Claims Statute, and not the Wage Payment Statute, and therefore should have first been submitted to the Indiana Department of Labor. The Court of Appeals reversed and remanded with instructions to dismiss the complaint, holding that the determination of which statute governs Walczak’s complaint must first be made by the Department, not the trial court. Walczak v. Labor Works – Fort Wayne, LLC, 966 N.E.2d 642 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: This was a March 5th, 2012 COA NFP opinion stating "We believe that * * * this is precisely the type of fact-sensitive inquiry that should be resolved in the first instance by the administrative agency."

9:45 AM - Loren Fry v. State of Indiana (09S00-1205-CR-361) - Appellant Loren Fry was charged with murder and requested bail. Article 1, Section 17, of the Indiana Constitution provides that murder is not a bailable offense “when the proof is evident, or the presumption strong.” Indiana Code section 35-38-8-2(b) states that the defendant has the burden of proof that he should be admitted to bail. Fry sought a declaratory judgment that the statute is unconstitutional because it removed the presumption that he was innocent and entitled to bail and put the burden of proof on him. The trial court ordered the that State should first show that the proof was evident, and then Fry would have the burden to convince the court that he should be admitted to bail. The trial court concluded that to the extent the statute conflicted with this procedure, the statute violates the state constitution. The trial court denied bail. This case was docketed as a direct appeal.

Next week's oral arguments before the Supreme Court (week of (10/15/12):

This week's oral arguments before the Court of Appeals (week of 10/8/12):

Tuesday, October 9th

1:00 PM - Verdyer O. Clark vs. State of Indiana ( 49A04-1202-CR-66) - Verdyer Clark was convicted of battery as a Class D felony, which required the State to prove the battery caused injury to a person less than fourteen years old and was committed by a person at least eighteen years old. Clark argues the State did not prove its case because its only evidence he was over eighteen was inadmissible hearsay. The Scheduled Panel Members are: Judges Baker, May and Senior Judge Shepard. [Where: Vanderburgh County Old Courthouse, Randall T. Shepard Courtroom, Evansville, Indiana]

Thursday, October 11th

10:00 AM - Boulder Acquisition Corp., et al, v. Unemployment Insurance Appeals of the Indiana Department of Workforce Development (93A02-1202-EX-127) - After Boulder Acquisition Corporation (“BAC”) merged with Affiliated Computer Services, Inc. (“ACS”), the Indiana Department of Workforce Development determined that BAC was the successor employer for ACS and each of ACS’s 26 subsidiaries. Therefore, the Department combined the 27 previously separate experience accounts for purposes of unemployment contributions into a single account and assessed a single contribution rate. BAC protested the determination, but the Liability Administrative Law Judge agreed with the Department, concluding BAC was the successor employer to ACS and all of its subsidiaries because it had acquired “the organization, trade, or business, or substantially all the assets” of ACS and the subsidiaries. BAC now appeals, contending it acquired only ACS, such that the Department’s determination should be reversed, separate experience accounts restored, contribution rates readjusted, and overpayments by BAC refunded. The Scheduled Panel Members are: Chief Judge Robb, Judges Baker and Bradford. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

11:00 AM - Leslie Bridges, individually and as Class Representative of all those similarly situated v. Veolia Water Indianapolis, LLC, et al (49A02-1112-CC-1097) - Appellant-Plaintiff Leslie Bridges, individually and as Class Representative of all those similarly situated, appeals the trial court’s order granting Appellees-Defendants Veolia Water Indianapolis, LLC’s, Veolia Water North America Operating Service, LLC’s, and the City of Indianapolis, Department of Waterworks’s (collectively, “Appellees”) motion to dismiss. In granting the Appellees’ motion, the trial court found that Appellant had failed to exhaust the available administrative remedies. In arguing that the trial court erred in dismissing her claims against the Appellees, Appellant contends that she was not required to exhaust administrative remedies before filing suit against the Appellees in the trial court. Appellees, for their part, contend that the trial court properly granted their motion to dismiss The Scheduled Panel Members are: Chief Judge Robb, Judge Bradford and Sr. Judge Shepard. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 10/15/12):

Wednesday, October 17th

1:30 PM - Duke Energy v. Indiana Utility Regulation Commission (93A02-1111-EX-1042) - A January 2009 ice storm in southern Indiana caused damage to Duke Energy Indiana’s electrical system. Duke filed a petition with the Indiana Utility Regulatory Commission (IURC) seeking deferred accounting treatment for its operating expenses relating to this storm. An evidentiary hearing was held, and Scott Storms was the administrative law judge. The Indiana Office of Utility Consumer Counselor (OUCC) opposed Duke’s request for deferred accounting treatment on grounds that it constituted both retroactive ratemaking and single-issue ratemaking. The IURC approved Duke’s request, and the OUCC appealed.
While the OUCC’s appeal was pending before this Court, Storms accepted employment with Duke. After it was discovered that Storms was negotiating employment with Duke while cases involving Duke – including this one – were pending before him, an investigation was launched. Pursuant to Indiana Appellate Rule 37, the OUCC filed a verified motion for stay of appeal and remand. This Court granted the OUCC’s motion and remanded this case to the IURC. In addition, the IURC reopened this case for further review and consideration. The Scheduled Panel Members are: Judges Vaidik, Mathias and Barnes.
[Where: Indiana Supreme Court Courtroom (WEBCAST)]

Sunday, October 07, 2012

Is there anything the next Governor of the General Assembly could do, if they wanted to, to stop or alter this project, or are the Indiana ratepayers already locked in?

Today in a lengthy Tony Cook of the Indianapolis Star asks the same question. Some quotes:

With urging from Gov. Mitch Daniels, lawmakers enabled and the state finance authority signed a controversial 30-year deal with the plant's developer, Indiana Gasification.

Under the agreement, the state must buy gas from the plant and sell it on the open market for a profit. If it can't, natural gas ratepayers must cover the loss on their monthly bills.

The risk to ratepayers has prompted some lawmakers to call for the deal to be reviewed, revised or scrapped. * * *

Getting out of the deal could be difficult. Under the contract with Indiana Gasification, the state is permitted to walk away from the deal only under very specific conditions, such as default, bankruptcy, or missed deadlines. Indiana Gasification, on the other hand, is permitted to cancel the deal if it determines that construction of the plant is economically unfeasible for any reason, though the company would be banned from selling gas from the plant to anyone else.

"It's well and good that some elected officials have seen the light," said Kerwin Olson, executive director of the Citizens Action Coalition, a consumer group that, along with Vectren Corp., is appealing the Indiana Utility Regulatory Commission's approval of the deal. But, he said, "It seems on the surface that the state is locked in." * * *

"Retroactive legislation is a very difficult thing to accomplish," Olsen said, adding that Indiana Gasification would likely sue the state for breach of contract.

Mark Lubbers, Indiana project director for Indiana Gasification and a former chief adviser to Daniels, said if the state pulled out of the contract, there would probably be damages involved, though he wasn't sure about the extent.

"I don't know, and if I did, I probably wouldn't advertise it," he said.

Law - "Alcohol, smoking and gaming issues may return to the Statehouse" and "Same-sex marriage has role in November election"

Maureen Hayden of the CNHI Statehouse Bureau reports in a long story that begins:

Alcohol, cigarettes, and gambling weren’t on the legislative agenda rolled out by Indiana House Republicans last week, but it’s likely they’ll be back at the Statehouse again next session anyway.

The three vices impact the state’s health and wealth in a variety of ways, which is why questions about how to regulate them keep returning. Gaming revenues are down, the clamor for Sunday alcohol sales hasn’t subsided, and smoke-free advocates want to gut the exemptions from the statewide smoking ban that went into place just three months ago.

It's not on the ballot, but same-sex marriage — specifically, whether Indiana will write a strict ban into its constitution — is an important issue in this year's election.

Amending the state's constitution involves a drawn-out three-step process, and it takes long enough that sometimes Hoosier voters lose track of exactly where that process stands.

After Bradner describes the process, his Sunday column concludes:

Since opponents of the ban are unlikely to persuade Bosma to block the measure from receiving a vote and are even less likely to have a friend in the governor's office, their efforts would probably be best spent courting an alternative ally: business.

Their argument is that they want to attract the top talent possible, and excluding a segment of the population with such a ban might make that job harder — especially because it is so restrictive that it affords same-sex couples no path to have their relationships legally recognized in Indiana.

Hoosiers are unlikely to see the business community pump the kind of money into this issue that the Indiana Chamber of Commerce and others did to get a set of lawmakers elected in 2010 that approved education reforms, a right to work law and more.

Those businesses might, however, help gay rights advocates in the only place they stand a chance of winning this battle: the court of public opinion, ahead of a 2014 vote.

Environment - Environmental outlook for Indiana continues to be dire no matter which major candidate is elected Governor

Stacey Stumpf, an editorial writer for the Fort Wayne Journal Gazette, has a long opinion piece today that begins:

Environmental stewardship is as much about attracting high-paying jobs to Indiana as it is about public health.

Companies – particularly entrepreneurial enterprises and small businesses – don’t decide to relocate to a state because that state is known for its lack of enforcement of air-quality laws or a willingness to look the other way when industrial pollution fouls state waterways. To the contrary, businesses choose communities that offer clear and fair regulatory policies as well as attractive quality-of-life amenities for their employees.

Considering the candidates claim their top priority is improving the economy and attracting jobs to Indiana, environmental issues should be an important deciding factor in the race for governor. But the two major-party candidates for governor, Republican Mike Pence and John Gregg, former Indiana House speaker and Democratic nominee, appear to be treating environmental issues almost as an afterthought. Rupert Boheham is the Libertarian candidate.

Indiana’s abysmal reputation for environmental protection is only serving to harm elected officials’ economic development efforts.

Courts - More on "Federal Judges Rule for Judges on Pay"

Updating this Oct. 6th ILB entry, Lyle Denniston of SCOTUSblog has a long entry today headed "Major victory – and pay raises – for U.S. judges." It begins:

After battling for years to get a pay raise that they say Congress had once promised them, six federal judges finally won in a specialized federal court on Friday. If the ruling withstands a likely trip to the Supreme Court, those judges – and presumably others – will get annual cost-of-living increases that have been specifically vetoed by Congress. The ten-to-two decision by the Federal Circuit is here.

The Court ruled that, in a 1989 law upon which the judges have been relying, Congress triggered the judges’ right under the Constitution not to have their pay level diminished. The Compensation Clause itself, the decision said, creates “basic expectations and protections” on judges’ pay.

Thus, it concluded, “in the unique context of the 1989 act, the Constitution prevents Congress from abrogating that statute’s precise and definite commitment to automatic yearly cost of living adjustments for sitting members of the judiciary.” * * *

The court commented: “A prospective judicial nominee in 1989 might well have decided to forego a lucrative legal career, based, in part, on the promise that the new adjustment scheme would preserve the real value of judicial compensation.”

The promise of a COLA increase, the opinion added, gained more significance because of the provisions of the 1989 law that banned judges from earning outside income and honoraria, on which many judges had been relying to offset their failure to get routine pay raises. * * *

The Circuit Court ordered the case back to the Court of Federal Claims to calculate what money damages are to be awarded to the six judges in the case. Although it said nothing about other federal judges, it did rule that several of the specific denials of COLAs were unconstitutional, leaving the impression that some other judges serving then might also have claims. Because of statute of limitations considerations, the decision said, the six judges’ damages award must be backdated only to January 13, 2003.

Law - "Error and Fraud at Issue as Absentee Voting Rises"

... Florida and other states are swiftly moving from voting at a polling place toward voting by mail. In the last general election in Florida, in 2010, 23 percent of voters cast absentee ballots, up from 15 percent in the midterm election four years before. Nationwide, the use of absentee ballots and other forms of voting by mail has more than tripled since 1980 and now accounts for almost 20 percent of all votes.

Yet votes cast by mail are less likely to be counted, more likely to be compromised and more likely to be contested than those cast in a voting booth, statistics show. Election officials reject almost 2 percent of ballots cast by mail, double the rate for in-person voting.

“The more people you force to vote by mail,” Mr. Sancho said, “the more invalid ballots you will generate.”

Election experts say the challenges created by mailed ballots could well affect outcomes this fall and beyond. If the contests next month are close enough to be within what election lawyers call the margin of litigation, the grounds on which they will be fought will not be hanging chads but ballots cast away from the voting booth.

In 2008, 18 percent of the votes in the nine states likely to decide this year’s presidential election were cast by mail. That number will almost certainly rise this year, and voters in two-thirds of the states have already begun casting absentee ballots. In four Western states, voting by mail is the exclusive or dominant way to cast a ballot.

The trend will probably result in more uncounted votes, and it increases the potential for fraud. While fraud in voting by mail is far less common than innocent errors, it is vastly more prevalent than the in-person voting fraud that has attracted far more attention, election administrators say.

It seems the judge "appeared to nod off" during the ongoing racketeering and conspiracy trial of a number of the Latin Kinds street gang. * * *

So says a report from this newspaper, and while I don't believe everything I read in the paper (especially if I wrote it) I think there's some fire behind this smoke.

"He (Lozano) was nudged awake by a court employee after an assistant U.S. attorney objected to a question by Adam Tavitas, the lawyer for alleged Latin King Martin 'Lefty' Anaya of Chicago," the article said.

Lozano didn't return my call. I'm inclined to give credence to the news account of the trial, though, in large part because I have been there and done that.

The last couple of trials I sat in on in Lozano's court, Lozano appeared to get sleepy in the afternoon (and who of us doesn't once we hit a certain age?) and had to be given a nudge to bring him back into focus.

One of the problems here is the fact that Lozano is 70 years old this year. By that age, most people in the private sector have been given their gold watch and escorted to the door, and are glad to be gone. * * *

Because Lozano is an Article III judge (nominated by the president and confirmed by the U.S. Senate in accordance with Article III of the U.S. Constitution) he cannot be removed except through impeachment.

Lozano was nominated for judge in 1987 and confirmed in 1988. In July 2007, he went on "senior status," which allows him to work anywhere from full-time to one-quarter and anywhere in the nation.

Back to Lozano and the apparent need for a coffee break.

I sat in on hearings on former Gary City Clerk Katie Hall on mail fraud, extortion and racketeering in 2002. She pleaded guilty in January 2003 and was spared prison time because of ill health.

Likewise, the fraud and tax evasion trial of East Chicago political operative Bob Cantrell, who was convicted in March 2009. He remains in prison but will face release soon.

During both actions, Lozano appeared to nod off before my very eyes. As with the Latin Kings trial, he was nudged awake.

Now there is word that Chief Judge Philip Simon of the Northern District of Indiana is soliciting anecdotal evidence of Rudy's diurnal habits.

Retention elections are the only opportunity for voters to have a say in who serves on the state's supreme and appellate courts.

In 1970, Hoosiers amended the Indiana Constitution to eliminate direct election of state court judges and decided that lawyers and judges seeking to serve on a state court must apply and be interviewed by a seven-member nominating commission, a process known as "merit selection."

That panel then recommends three finalists to the governor who appoints one to the bench. After serving for two years, the justice or judge must stand for retention and let voters decide if he or she has earned a 10-year term.

Lake and St. Joseph counties use a similar merit selection process to pick their judges, who must run for retention every six years. The judges in Indiana's 90 other counties and in Illinois are elected. * * *

The two Indiana Supreme Court justices seeking retention this year are Justice Robert Rucker and Justice Steven David. They are on the ballot statewide.

Rucker, 65, is a Gary native who has served on the state's high court since 1999 after prevailing in a 2002 retention election. A victory this year would keep Rucker, a former Court of Appeals judge, on the bench until he hits the mandatory retirement age of 75.

David, 55, is running in his first retention election following his 2010 appointment by Republican Gov. Mitch Daniels. He is best known for writing the controversial Barnes v. State ruling that said Hoosiers never have a right to resist police, even if an officer is acting unlawfully.

That 2011 decision prompted Statehouse protests with many in attendance demanding Hoosiers vote against retaining David. However, aside from a few roadside signs and an online rant by the Indianapolis Tea Party, there appears to be no organized opposition to David's retention.

Justices and judges are only allowed to campaign for retention if there is organized opposition. David has so far remained silent on his retention bid, perhaps confident knowing no state court judge has ever lost a retention election.

Five Court of Appeals judges are up for retention this year but only three come from appeals court districts that cover Northwest Indiana. All three were appointed to the appellate court in 2000 by Democratic Gov. Frank O'Bannon and each won retention in 2002.

[Updated at 3:00 PM] As a reader writes to point out, and as the ILB wrote in this June 21st entry, four, not five, Court of Appeals judges are up for retention this year:

Four members of the Court of Appeals must stand for retention in order to continue in office: Judges John G. Baker, Michael P. Barnes, Nancy H. Vaidik and Paul D. Mathias. Judge Martha B. Wentworth of the Tax Court is not yet eligible to stand for a 10-year term because she took office 1/17/11. (The other new COA-level judges, Cale J. Bradford and Elaine B. Brown, stood for retention in 2010.)

BTW, although the Supreme Court justices standing for retention will be on ballots statewide, for the Court of Appeals judges, only Judge Vaidik will be on every ballot statewide; Baker will only be on 1st district ballots and Barnes and Mathias will only be on 3rd district ballots. (The districts are explained here on the COA website.)

Saturday, October 06, 2012

Courts - "Federal Judges Rule for Judges on Pay"

Refereeing a remarkable dispute between the judiciary and Congress, a divided federal appeals court ruled late Friday afternoon that lawmakers violated the Constitution by blocking cost-of-living salary increases for federal judges.

The U.S. Court of Appeals for the Federal Circuit acknowledged the case presented it with a direct conflict of interest. Judges aren’t supposed to participate in cases in which they have a personal or financial interest, but here, the appeals court said it had no choice. If every federal judge were disqualified, there would be no tribunal to hear the plaintiffs’ claims, it said. * * *

“All sitting federal judges are entitled to expect that their real salary will not diminish due to inflation or the action or inaction of the other branches of government,” Chief Judge Randall Rader wrote for the court. “The judicial officer should enjoy the freedom to render decisions — sometimes unpopular decisions — without fear that his or her livelihood will be subject to political forces or reprisal from other branches of government.”

The appeals court said the case implicated basic separation-of-powers principles. “The judiciary, weakest of the three branches of government, must protect its independence,” Judge Rader wrote.

Ind. Law - More on "State’s tough drug-free zone law may be on its way out"

INDIANAPOLIS — Members of a legislative study panel expressed concerns Thursday about an Indiana law that brings more prison time for drug dealing within 1,000 feet of schools and other places children gather, and they likely will recommend the General Assembly sharply reduce the distance and limit the number of areas affected.

Rep. Ralph Foley, a Martinsville Republican who is chairman of the Criminal Code Evaluation Commission, said it will consider proposed legislation at its Oct. 18 meeting to recommend to the full General Assembly.

The legislation hasn’t been written yet, but some lawmakers, including Rep. Matt Pierce, D-Bloomington, discussed reducing so-called drug-free zones to within 100 or 200 feet of schools and possibly just the boundaries of parks.

“This thing is just a plea-bargain tool,” Pierce said, suggesting the possible 20-year prison term in the law gives prosecutors leverage to get defendants to agree to plea bargains carrying less time. * * *

The Indiana Supreme Court this year expressed its own concern about the law in two rulings. [ILB: These are listed in the Sept. 26th entry] In both cases, the court threw out 20-year sentences and ordered 12-year terms. In one, the defendant would have received no more than a three-year term except police stopped the car he was in within 1,000 feet of a school.

Friday, October 05, 2012

See Lyle Denniston's long post this afternoon at SCOTUSblog that begins:

Just as the Supreme Court set off a revolution in criminal sentencing with its 2000 ruling in Apprendi v. New Jersey, on Friday it set the stage for another — tied directly to the Apprendi precedent. The Court agreed to consider overruling one of its own precedents that allowed judges, rather than juries, to rule on facts that would allow more than a minimum sentence to be imposed. Until now, the “Apprendi rule” had only insisted that juries find the facts to raise a sentence beyond a maximum, not a minimum.

At issue is the continuing validity of the 2002 decision in Harris v. United States, in which the Court was widely splintered. The strength of that ruling as a precedent now appears to depend upon whether the Justice who cast the fifth vote to make a majority for the result there – Justice Stephen G. Breyer — has changed his mind. There have been signs that he may have done just that. In any event, there were at least four votes to face the issue anew.

Ind. Courts - Indiana ACLU Files two 1st amendment cases this week

Oct. 2, 2012 - "Disabled Veteran Sues for Right to Protest" - re a " disabled veteran who brought his 10 year-old son to Monument Circle to protest an action he believed would violate his Second Amendment rights brought suit against the State of Indiana yesterday in federal court."
Oct. 5, 2012 - "Attorney Sues Library for First Amendment Violation" - re an "attorney who seeks to educate the public about the federal healthcare law on a large public plaza filed a lawsuit today against the Allen County Public Library in Fort Wayne for preventing him from exercising his First Amendment right of free expression."

One of the seven cases accepted for review by the SCOTUS today, according to this Reuters story, is "an Indiana soybean farmer's appeal of a decision finding that he infringed Monsanto Co patents over seeds containing the company's genetically altered Roundup Ready technology."

The case is Bowman v. Monsanto Co. According to SCOTUSblog'scase page:

Issue: Whether the Federal Circuit erred by (1) refusing to find patent exhaustion – a doctrine which eliminates the right to control or prohibit the use of an invention after an authorized sale – in patented seeds that were sold for planting; and (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies.

Jon Campbell writes in Slate today, in a long article asking "How does the conservative maestro of campaign finance fund his legal work?." A sample:

[T]he James Madison Center for Free Speech [is] a nonprofit organization he co-founded in 1997. As a charity, the organization doesn’t really exist, outside of a few tax records in an IRS file cabinet. In reality, Bopp is the Madison Center, and vice versa, and for more than 15 years, the Indiana-based charity has helped fund Bopp’s influential litigation by channeling tax-exempt, mostly anonymous donations to his for-profit law firm.

The Madison Center shares characteristics with the ostensibly nonpolitical “social welfare” groups that are spending millions in undisclosed donations on ads in the 2012 election—which they’re free to do as a direct result of Bopp’s legal strategy. The man who has done the most to cloud disclosure laws is himself running an operation that’s partly in the shadows. The Center shares an address and telephone number with Bopp’s own law offices in Indiana, and has no paid staff or facilities of its own, according to the group’s public filings. Even the Center’s website is registered to the firm’s address. Officially, Bopp is just an employee at the Center, though he draws no salary, and his firm is classified on the group’s IRS records as an independent contractor. But he largely controls the Center’s activities, and virtually every dollar it collects, including hundreds of thousands from anonymous donors, is passed on to Bopp’s firm.

The arrangement stands out in the world of legal advocacy groups, tax experts told me, and raises questions about compliance with the IRS rules governing charitable organizations. “The relationship between this organization and Bopp’s law firm is such that there really is no charity,” said Marcus Owens, formerly a top official at the IRS responsible for overseeing tax-exempt groups. “I've never heard of this sort of captive charity/foundation funding of a particular law firm before.”

Later in the article:

And as Kingsley and all of the experts I spoke with pointed out, Bopp’s relationship with the Madison Center, convoluted as it is, might still pass muster under an IRS audit. Determining excessive private benefit can be a “squishy” endeavor, as Kingsley put it. And anyway, the IRS isn’t set up to go after what are ultimately small groups, even if they are violating the rules. Auditors are few and the potential payoff in fines and restitution doesn’t make nonprofits an attractive target.

In some ways the Madison Center operates like a public interest law firm, but there are important differences. Most public interest firms are for-profit ventures, and therefore can’t accept tax-deductible donations; they make their money from attorney fee awards when their cases are successful. About 60 percent of reported Madison Center funds, on average, do come from such awards. But it’s only recently that courts have embraced Bopp’s view of the law, and he ends up losing plenty of cases. Without the Madison Center underwriting those losses—through tax-deductible, mostly anonymous donations—Bopp’s firm might go broke litigating the losers.

The article links to an October 2012 story in The Atlantic written by James Bennet and headed "The New Price of American Politics." A quote from the lengthy story:

Bopp’s law office remains defiantly planted at the corner of Sixth Street and Wabash Avenue, in downtown Terre Haute, American flags hanging in its windows. When he showed me around the dusty, drought-hammered streets this summer, he waved at the emptied storefronts across Wabash, and the space still tenuously held by Rogers Jewelers (“The Diamond Store of Terre Haute”), which was in the midst of a moving sale. During his first campaign, in 1964, he recalled, the Republican Party occupied one such storefront, and two spontaneous citizens groups formed in two other storefronts to also campaign for Goldwater, outside the formal party. That would never happen today, he told me. “Why is that?” he went on. “The laws. You gotta get a lawyer, you gotta get an accountant—­well, forget about it.” His voice was rising in frustration, or maybe with a passion to be understood. “See?” he asked me. “We’ve really lost something! We’ve lost involvement.”

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

Here, the small claims court denied Heartland’s recovery of the $50 administrative fee after finding it was not a cost actually incurred by Heartland, was without basis, and was “nothing more than an abusive junk fee.” Additionally, the trial court denied Heartland’s recovery of additional attorneys’ fees of $795.10 and court costs after finding the attorneys’ fees and court costs were based solely on the $50 administrative fee, to which Heartland was not entitled.

The evidence most favorable to the judgment discloses that Heartland had a history of assessing repetitive and cumulative fees during each effort to collect late dues, including late fees equal to almost 33% of each dues payment, a flat-rate attorneys’ fee equal to almost 50% of each dues payment, and a $50 administrative fee. * * *

Conclusion. The evidence most favorable to the judgment supports the trial court’s conclusion that Dotlich does not owe Heartland the $50 “administrative fee,” costs, or $795.10 in attorneys’ fees. Therefore, the trial court’s judgment for Dotlich is not clearly erroneous. Affirmed.

Courts - "Picking Your Font for Legal Briefs" Or not. [Updated twice]

Joe Palazzolo of the WSJ Law Blog quotes today from the 7th Circuit's guidance for what fonts to use in briefs. One of the 7th Circuit's paragraphs quoted reads:

Typographic decisions should be made for a purpose. The Times of London chose the typeface Times New Roman to serve an audience looking for a quick read. Lawyers don’t want their audience to read fast and throw the document away; they want to maximize retention. Achieving that goal requires a different approach—different typefaces, different column widths, different writing conventions. Briefs are like books rather than newspapers. The most important piece of advice we can offer is this: read some good books and try to make your briefs more like them.

ILB: Good advice if you are practicing before the 7th Circuit. But are the times changing? The ABA council of Appellate Lawyers spring issue of Appellate Issues has an interesting article beginning at p. 9, by Robert Dubose, titled "Writing Appellate Briefs for Tablet Readers." Some quotes:

Most law schools teach a legal
writing style geared to paper readers – long text,
long paragraphs, and complex, lengthy development
of arguments. Yet, as countless web pages illustrate,
PC readers prefer something different – a highly
structured text that is easy to read rapidly. I argued
that, to communicate with screen readers, legal writers
need to make briefs look more like web pages. * * *

This paper will explore what tablet-reading means
for appellate brief writers. It will (1) survey technologies judges currently use to read briefs, (2) explain
how the experience of tablet reading affects reading
habits, and (3) suggest tips to make briefs easier to
read on a tablet.

I. How are appellate judges reading today?

I have been asking this question of appellate judges
across the county for a few years. The answers vary,
and they have been changing rapidly. Appellate
judges fall within one or more of these categories:

Paper readers. Two years ago, most appellate
judges I asked were reading briefs exclusively on
paper. Yet within the past year, judges who read
briefs exclusively on paper have become the minority.
Judges who do still read on paper give
several reasons. Some have no choice; their
court’s files are maintained on paper and briefs
are only available on paper. Some resolutely prefer
paper over screens, even though their courts
manage files electronically. And some judges alternate
between reading on paper and screens;
they are more likely to read briefs on paper when
they need to study a complex issue in depth.

PC readers. In courts that use e-filing and electronic
document management, a majority of
judges are reading on PC screens. I practice in
Houston, where only two years ago all appellate
court files were maintained on paper, and all
briefs were read on paper. Today, the courts have
adopted e-filing and electronic document management
and moved into a new courthouse
where every justice has dual PC monitors. Most
appellate justices in Houston now read briefs primarily
on screens.

Tablet readers. In 2011, I began hearing reports
of appellate judges who read at least briefs on
iPads. Judges are more likely to read on an iPad
when their court uses electronic document management,
when the individual judge reads briefs
out of the office, and especially when the court
has purchased iPads for the judges. But most
iPad readers do not read on iPads all of the time.
When judges with iPads are in the office, most report that they are more likely to read on paper
or on a PC screen.

The reading media of judges, and court staff, is currently
in flux. To find out what reading technology is
used in the courts in which you practice, ask the
judges and court clerks. Be prepared for their answers
to change overnight whenever the court
adopts a new technology.

[Updated at 12:30 PM] A reader sends a link to this story by Mike Scarcella in the Sept. 10, 2012 National Law Journal, headed "In voter ID case, how big is the letter of the law?" A quote:

In South Carolina's closely watched dispute with the Justice Department over voter identification, the judges earlier this year told the attorneys to use 13-point Times New Roman font. Double-spaced. With one-inch margins.
There wasn't any dispute about the font and size — until September 8. At that point, after DOJ and South Carolina traded briefs about the case, the federal government noticed something peculiar. South Carolina's "proposed findings of fact" papers, submitted by a team from Bancroft, had a smaller-sized font.
On Saturday evening, a Justice Department lawyer, Bradley Heard, sent an e-mail to South Carolina's legal team saying that "we note that the document appears to be in 12 point font, not 13 point font," as required by court orders in the case.

ILB: But, as noted at the beginning of this post, Times New Roman, whatever the size, is not favored by the 7th Circuit.

[Updated at 3:45 PM] A reader points to Indiana App. R. 43(D):

Print Size. The font shall be Arial, Baskerville, Book Antigua, Bookman, Bookman Old Style, Century, Century Schoolbook, Courier, Courier New, CG Times, Garamond, Georgia, New Baskerville, New Century Schoolbook, Palatino or Times New Roman and the typeface shall be 12-point or larger in both body text and footnotes.

Thursday, October 04, 2012

Ind. Decisions - 7th Circuit decides one Indiana case today

In Angelina Povey v. City of Jeffersonville (SD Ind., Young), an 11-page opinion, the  Honorable Sharon Johnson Coleman, District Judge for
the Northern District of
Illinois, sitting by designation, writes:

Angelina Povey injured her
wrist while working as an attendant at the City
of Jeffersonville (“Jeffersonville”) animal shelter.
Jeffersonville ultimately terminated Povey’s employ ment. Povey brought this action under 42 U.S.C. § 12101
alleging that her termination violated the Americans
with Disabilities Act (“ADA”). The district court
granted Jeffersonville’s motion for summary judgment,
finding that Povey does not qualify as “disabled” under
the ADA. We affirm.

Shannon Barabas had two mortgages on her Madison County home. The second mortgagee foreclosed on the property without notice to the first. The first mortgagee sought to intervene and obtain relief from the foreclosure judgment, but the trial court denied its motion. We reverse. * * *

C. Statutory and Constitutional Claims

Citimortgage argues that its agent, MERS, enjoys a statutory entitlement to notice under Indiana Code § 32-29-8-1 because it is a “mortgagee.” That is a bridge too far. * * *

Ultimately, we do not believe that the authors of the original version of this statute, writing in 1877, would have understood the term “mortgagee” to include an entity like MERS that neither holds title to the note nor enjoys a right of repayment. Thus, our decision here should not be taken to mean that MERS is a “mortgagee” as the term is used in Indiana Code § 32-29-8-1. All we hold today is that because Citimortgage never received proper notice of the foreclosure proceeding, it lay beyond the jurisdiction of the trial court, and the default judgment is thus void as to Citimortgage’s interest in the Madison County property.

As to ReCasa’s arguments regarding the possibility of redemption under Indiana Code § 32-29-8-3, it would be inappropriate to address them here, as we have decided the question before us on other grounds. We therefore express no opinion as to whether Citimortgage had the right to redeem the property under that statute. We emphasize, however, that when we granted transfer in this case, the opinion of the Court of Appeals was vacated in its entirety. Ind. Appellate Rule 58(A).

We note in closing that it is both difficult and undesirable to apply such superannuated statutes to the modern mortgage industry. The drafters of the original 1877 version of Indiana Code § 32-29-8-1 envisioned a drama for two, or at most three, actors: Borrower, Mortgagee, and possibly Assignee. They could not have imagined our present-day multi-trillion-dollar international mortgage market. The statute that they drafted, and under which Indiana mortgage transactions still take place, thus leaves unaddressed many issues important to contemporary practice. We recognize that the General Assembly may soon find it necessary to modernize the statutory script to accommodate this new and larger cast of characters.

Conclusion. On these facts, we hold that the trial court’s denial of Citimortgage’s motion to intervene and obtain relief from the foreclosure judgment was based on a misinterpretation of the law and thus an abuse of discretion. We therefore reverse that ruling and remand with instructions to grant the motion to intervene and amend the default judgment to provide that ReCasa took the Madison County property subject to Citimortgage’s lien.

• Virlissa Crenshaw, 42, of East Chicago, charged with theft from a local government entity and filing a false tax return for the 2009 tax year. Crenshaw was a clerk with the Merrillville Town Court when she allegedly stole cash bonds totaling $176,763. She has signed a plea agreement.

According to a Sept. 22, 2011 story in the ILJ, "Trustee Eugene Akers’ plan to move the court [is] against Judge Michelle Smith Scott’s wishes. The judge cited security reasons among her objections to the move." See this Dec. 14, 2011 ILB entry.

This Dec. 14, 2011 ILB entry quoted from an order issued Dec. 9, 2011 by the Supreme Court, appointing Mr. Charles l. Berger, an attorney who regularly practices in Vanderburgh County, Indiana, to hear 49 S 00 - 1111 - SJ - 00667; CENTER TOWNSHIP OF MARION CTY. SMALL CLAIMS CT. (MANDATE). Here is the Dec. 9, 2011 order, as set out in the docket:

EACH JUSTICE HAS HAD THE OPPORTUNITY TO REVIEW THE TRUSTEE'S
MOTION AND THE JUDGE'S ORDER, AND HAS DISCUSSED THE MATTER AT
COURT CONFERENCE. AN OVERRIDING ISSUE PRESENTED IN THIS MATTER
IS THE FUNDAMENTAL QUESTION OF ACCESS TO JUSTICE. ALL MANDATES,
SOME MORE THAN OTHERS, IMPACT UPON ACCESS TO JUSTICE. ONE OF
THE ISSUES PRESENTED HERE, THE LOCATION OF THE CENTER TOWNSHIP
OF MARION COUNTY SMALL CLAIMS COURT, MAY HAVE A SUBSTANTIAL
IMPACT ON ACCESS TO JUSTICE. AS SUCH A PROMPT AND FULL HEARING
OF THE COMPETING INTERESTS IS NECESSARY.

THE COURT FINDS THAT THE PROCEDURES SET OUT IN TRIAL RULE
60.5 ARE DESIGNED TO PROVIDE AN IMMEDIATE, EXPEDITIOUS AND
SIMPLE METHOD FOR RESOLVING AND REVIEWING INTRA-COUNTY
DISAGREEMENTS ABOUT COURTS AND COURT FUNDING. IN THE MATTER OF
ASSIGNMENT OF COURTROOMS, JUDGES OFFICES, AND OTHER COURT
FACILITIES OF THE ST. JOSEPH SUPERIOR COURT, 715 N.E.2D 372
(IND. 1999). THE USE OF TRADITIONAL LITIGATION, AS SUGGESTED
BY THE TRUSTEE IN HIS MOTION TO DISMISS, IS TYPICALLY SLOWER,
MORE COMPLEX AND MAY NECESSITATE THE USE OF OTHER REMEDIES TO
MAINTAIN THE STATUS QUO UNTIL THE LITIGATION IS RESOLVED.
PROCEEDING UNDER TRIAL RULE 60,5, IS ADVANTAGEOUS TO THE JUDGE,
THE TRUSTEE AND THE PUBLIC. THE COURT THEREFORE FINDS THAT THE
TRUSTEE'S MOTION TO DISMISS SHOULD BE DENIED.

IT IS, THEREFORE, ORDERED THAT THE TRUSTEES' MOTION TO
DISMISS IS DENIED.

HAVING DENIED THE TRUSTEE'S MOTION TO DISMISS, THE COURT,
BEING DULY ADVISED, NOW FINDS THAT A SPECIAL JUDGE SHOULD BE
APPOINTED TO HEAR THIS MATTER PURSUANT TO IND. TRIAL RULE
60.5(B).

IT IS, FURTHER ORDERED THAT PURSUANT TO T.R. 60.5(B), MR.
CHARLES L. BERGER, AN ATTORNEY WHO REGULARLY PRACTICES IN
VANDERBURGH COUNTY, INDIANA, IS APPOINTED TO HEAR THIS MATTER,
WHICH SHALL BE HEARD IN THE CENTER TOWNSHIP OF MARION COUNTY
SMALL CLAIMS COURT. PURSUANT TO IND. TRIAL RULE 79(K) AN OATH
OF OFFICE IS REQUIRED OF MR. BERGER.

RANDALL T. SHEPARD, CHIEF JUSTICE
ALL JUSTICES CONCUR.

This entry from Jan. 12, 2012:

AND THE COURT, BEING DULY ADVISED, NOW FINDS THAT THE
TRUSTEE'S MOTION PROPERLY BELONGS BEFORE THE CENTER TOWNSHIP
OF MARION COUNTY SMALL CLAIMS COURT, WHERE THIS CASE IS
PENDING AND SPECIAL JUDGE CHARLES L. BERGER.

IT IS, THEREFORE, ORDERED THAT THE TRUSTEE'S MOTION FOR
CHANGE OF JUDGE AND/OR RECUSAL OF THE SPECIAL JUDGE IS DENIED.

RANDALL T. SHEPARD, CHIEF JUSTICE
ALL JUSTICES CONCUR.

The most recent entry on the docket is dated June 28, 2012. A new docket was created, beginning June 24, 2012, as: Case Number: 49 S 00 - 1207 - MF - 00420, IN RE: CENTER TOWNSHIP OF MARION COUNTY SMALL CLAIMS COURT. That docket includes this July 26, 2012 entry:

FOR PURPOSES OF BRIEFING, CENTER TOWNSHIP TRUSTEE,
EUGENE W. AKERS, AND THE CENTER TOWNSHIP ADVISORY BOARD CENTER
WILL BE CONSIDERED THE APPELLANTS, AND JUDGE SCOTT, THE
APPELLEE. THE APPELLANTS' BRIEF SHALL BE FILED NO LATER THAN
AUGUST 27, 2012, AND SHALL CONFORM TO THE REQUIREMENTS SPECIFIED
IN APPELLATE RULES 43, 44, AND 46. THE APPELLEE'S BRIEF AND ANY
SUBSEQUENT BRIEF SHALL BE DUE AS SPECIFIED IN APPELLATE RULE 45,
AND SHALL ALSO CONFORM TO THE REQUIREMENTS SPECIFIED IN
APPELLATE RULES 43, 44, AND 46. ATTORNEYS FOR CENTER TOWNSHIP
TRUSTEE, EUGENE W. AKERS, AND THE CENTER TOWNSHIP ADVISORY
BOARD CENTER SHALL PREPARE ANY NECESSARY APPENDIX OF RELEVANT
TRIAL COURT FILINGS, AS PROVIDED IN APPELLATE RULES 49-51. NO
EXTENSIONS OF TIME FOR THE FILING OF BRIEFS WILL BE PERMITTED
ABSENT EXTRAORDINARY CIRCUMSTANCES.

AS OF THE DATE OF THIS ORDER, THE MANDATE ACTION WAS
ASSIGNED THE NEW SUPREME COURT CAUSE NUMBER THAT APPEARS AT THE
TOP OF THIS ORDER, AND SHOULD BE USED ON ALL FUTURE FILINGS
IN THE MATTER.

QUESTIONS REGARDING THE PROCEDURAL MECHANICS OF RECORD
PREPARATION AND BRIEFING SHOULD BE DIRECTED TO THE SUPREME
COURT CLERK/ADMINISTRATOR.

SOUTH BEND, Ind. (AP) — A federal judge has turned down an appeal from a man on Indiana's death row for the 2001 shooting death of a sheriff's deputy.

Attorneys for Tommy Pruitt have argued that his death sentence should be overturned because he is mentally disabled. * * *

Federal Judge Robert Miller in South Bend ruled this week that Pruitt's IQ is close to the cutoff for mental retardation but that state courts didn't act unreasonably in finding him able to stand trial.

The Indiana Supreme Court in 2009 rejected a similar appeal from Pruitt.

Ind. Gov't. - "Feds nab NWI officials on tax fraud, other charges"

HAMMOND | U.S. Attorney David Capp on Thursday announced a series of indictments of Northwest Indiana officials stemming from tax fraud investigations.

The indictments include public officials from East Chicago, Hammond, Gary and Merrillville, along with a business owner receiving city contracts. The charges include a kickback scheme and a city official that failed to file a tax return for the past two decades.

Ind. Court - Justice David reportedly faces retention challenge

Updating this ILB entry from Sept. 17th, which was headed "Two members of the Indiana Supreme Court and four members of the Court of Appeals of Indiana are up for retention in the November general election," Jeff Neumeyer had this story late this afternoon on the Indiana News Center site. Some quotes:

Critics of one Indiana Supreme Court Justice are trying to convince Hoosier voters to throw Justice Steven David off the high court in the November election.

It appears as though Justice David is being targeted for his stance in one high profile ruling. * * *

Justice Steven David has served two years on the state supreme court, and by law, he is subject to a retention vote on the November ballot.

Critics want to oust him, mainly because he wrote the majority opinion in "Barnes versus the State of Indiana". [ILB - sic.]

Supreme Court Justice Robert Rucker, also up for retention, took the opposite view in the Barnes ruling.

Steven David held that the notion "Your home is your castle" is not a proper defense to the crime of battery or other violent acts on a police officer, adding that promoting safety trumps homeowner rights in such situations.

The story does not name or quote any of the critics. Neither does the accompanying video, but it does show a photo of a "Vote No Steven David" yard sign that includes a link to www.VoteNoJusticeDavid2012.com.

The ILB clicked the link and was redirected to the site: indianapolisteaparty.com.

ILB: The Indiana Code of Judicial Conduct, CANON 4's overall title reads: "A Judge or Candidate for Judicial Office Shall Not Engage in Political or Campaign Activity That is Inconsistent with the Independence, Integrity, or Impartiality of the Judiciary."

However, Rule 4.4 of the Canon permits "a candidate for retention who has met active opposition, [to] establish a campaign committee to manage and conduct a campaign for the candidate." The ILB has not yet seen any reports of creation of a Justice David campaign committee.

John Estridge, editor of the Brookville American-Democrat, has a long story today about Judge Clay Kellerman’s chapter in a new bench book. A sample:

Kellerman was placed on a committee chaired by an Indiana Supreme Court Justice, Brent Dickson and made up of 11 judges from across the state. Dickson is now the chief justice of the Indiana Supreme Court after the retirement of Randall Shepard.

According to Kellerman, he was surprised one did not already exist regarding juries.

There are eight chapters in the book and Kellerman wrote a chapter on trial management.

“It deals with everything that could happen or a judge or the judge’s staff could face day of trial, shortly before trial or during trial,” Kellerman said. “Everything from how to deal with preliminary motions, how many jurors are seated in a particular kind of case, how many challenges each party would have. Just anything and everything one could face day of trial both criminal and civil.”

After reading this, the ILB looked for Indiana court benchbooks, without a great deal of success.

Juvenile Benchbook: The Juvenile Benchbook Committee is made up of judges and magistrates with juvenile jurisdiction. The Committee writes and edits two benchbooks covering four distinct topics: Child in Need of Services ("CHINS"), Paternity, Termination of the Parent Child Relationship (TPR), and Delinquency.

Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)

In sum, we hold that Cleveland may argue surprise in a witness’s purported change in testimony for the first time on appeal. But, on these facts, we hold that the trial court did not abuse its discretion when it denied Cleveland’s motion to correct error and for relief from judgment. We cannot say on this record that Dr. Choi’s trial testimony was so different from her deposition testimony that it invoked, as alleged, any duty on the part of Clarian to amend under Trial Rule 26(E)(2) or that Clarian committed misconduct under Trial Rule 60(B)(3). Thus, we affirm the trial court’s denial of Cleveland’s motion to correct error and for relief from judgment.

Steele filed a motion to suppress, arguing in pertinent part that the statements that he made to Officer Ferklic at the gas station should be suppressed pursuant to Indiana Evidence Rule 617 * * *

At the hearing on his motion to suppress, Steele argued that Officer Ferklic violated the rule by failing to transport him to a “Place of Detention” to record his statement. The trial court denied Steele’s motion, and this interlocutory appeal ensued. * * *

Two observations are in order. One, Evidence Rule 617 does not apply in this case because Officer Ferklic’s interrogation of Steele did not occur in a Place of Detention. And two, the rule does not, either explicitly or implicitly, impose an affirmative duty on law enforcement officers to transport a person to a Place of Detention before conducting a Custodial Interrogation. Steele’s policy arguments for imposing such a duty should be directed to the Evidence Rules Review Committee, which may recommend to the Indiana Supreme Court that the rule be amended accordingly.

Courts - "G.O.P. Aims to Remake Florida Supreme Court"

From the NY Times today, this report by Lizette Alvarez. Some quotes from the lengthy story:

MIAMI — In a bid to remake Florida’s judiciary, Republicans are asking voters to oust three state Supreme Court justices and give the Legislature greater power over Supreme Court appointments and judicial rules of procedure. * * *

In Florida, the issue is not same-sex marriage but another politically divisive matter: President Obama’s health care law. In a 2010 ruling, the Florida Supreme Court removed from the ballot a nonbinding amendment allowing Floridians to refuse to buy mandatory health insurance. The justices ruled that the required ballot summary contained “misleading and ambiguous language” and asked the Legislature to fix it. Lawmakers did, and it is back on the ballot this year.

The initial ruling was one of several, including decisions on redistricting and property taxes and, going back to 2000, the ballot recount in Bush v. Gore, that have displeased conservatives in the state and in the Republican-dominated Legislature, which has tried since then to exert greater control over the court. * * *

This year, the campaign in Florida is considerably more intense and organized. For the first time, the Florida Republican Party’s executive board announced last week it would oppose the retention of the three justices because of their extensive “judicial activism.”

It singled out a 2003 case in which the court reversed the murder conviction of a man who tied a woman to a tree and set her on fire, and ordered a retrial on technical grounds. The United States Supreme Court reversed the decision, saying the justices had applied the wrong standard, and remanded the case to the Florida court. Ultimately, the conviction was affirmed, and the man remains on death row. By announcing its opposition to the three justices, the Republican Party avoids clashing with a law that prevents political parties from endorsing judicial candidates. In its statement, the party said the justices were “too extreme not just for Florida, but for America, too.”

Typically, decisions to remove a justice are based on misconduct or incompetence, not disagreements over particular decisions. The party’s decision to take sides surprised even some Republicans, who said it set a bad precedent. * * *

The Legislature is also involved in efforts to influence the judiciary. A ballot initiative, Amendment 5, would give the Senate, not the governor, final approval over the choice of State Supreme Court justices — similar to the federal system. It also would allow the Legislature to repeal court rules with a majority vote, not the two-thirds now required. And it would grant the House speaker access to confidential judicial misconduct investigation files before charges actually being filed.

A story by Andrew Wolfson in the September 28th Louisville Courier-Journal began:

Kentucky’s new chief bar counsel, who will oversee discipline of the state’s 17,164 attorneys, once blamed problems in the legal profession on the influx of women lawyers.

A 1994 column Thomas “Tommy” Glover wrote as president of the Fayette County Bar Association in its newsletter, appeared to bemoan the changes brought by more women practicing law.

Glover noted in the column that the percentage of women lawyers had risen dramatically since he entered the profession in 1975 and that for a number of attorneys “the new order is disturbing.”

The column goes on to say that “women speak the law unlike men do. Not better, different.” Glover also said that “humor has atrophied” and that “the comradeship that once existed is gone.”

“Jokes have been altered, poker isn’t played at the bar picnic...and the manner and method of practicing law has been changed, forever,” Glover wrote.

Glover’s column prompted an uproar from women lawyers in Lexington at the time, and he later wrote that he hadn’t intended to suggest that the “growing incivility in the law practice” is the fault of women lawyers. “To those who took offense, I apologize,” he said.

SOUTH BEND -- A federal court will have the first shot at deciding whether a controversial bunch of South Bend police tapes can be released to the public.

The city's Common Council voted in August to serve Mayor Pete Buttigieg with a subpoena for the recordings, which sparked a federal investigation earlier this year and led the mayor to demote former Chief Darryl Boykins and fire police communications director Karen DePaepe.

Buttigieg has contended that the methods for recording phone calls inside the police department violated the Federal Wiretap Act, so -- instead of responding to the council's subpoena -- his administration asked a federal judge to rule on whether it's legal to listen to the tapes. The recordings are rumored to contain conversations among officers talking about potentially criminal acts and making racial comments about Boykins, who is black.

Law - "Analysis: How opponents held back the voter ID tide"

That is the headline to a Reuters article by Andrew Longstreth that looks at the current string of voter ID law defeats (or temporary halts) in a number of states, and differentiates them from the SCOTUS ruling onIndiana's voter ID law. It begins:

Voter ID laws have also been turned back in Wisconsin and Texas this year and some others may also not go into effect before the U.S. presidential election just five weeks away.

The fact that tighter voting laws are faring poorly in court was not expected by some legal experts. That's because in 2008, the U.S. Supreme Court upheld a voter identification law passed by Indiana, leading many experts to conclude that it would be hard to challenge such laws in court.

Since the last presidential election, some 15 states have passed or tightened legislation requiring people to identify themselves before voting.

Defenders of the laws, mostly Republicans, say the laws are needed to prevent people from fraudulently impersonating registered voters at the election booth. Opponents, mostly Democrats, complain that obtaining identification documents is an undue burden that could disenfranchise the poor, minorities and the elderly.

In its 2008 decision, the Supreme Court found that a 2005 Indiana law requiring voters to identify themselves was not an undue burden.

But in the recent wave of voter ID laws, opponents have successfully marshaled a series of arguments, including showing why the situation in individual states is different from the one in Indiana.

The NY Times this morning has a front-page story by Ethan Bronner, headed "Voter ID Rules Fail Court Tests Across Country." Some quotes:

“Every voter restriction that has been challenged this year has been either enjoined, blocked or weakened,” said Lawrence Norden of the Brennan Center for Justice, which is part of the New York University School of Law and opposes such restrictions. “It has been an extraordinary string of victories for those opposing these laws.”

Voter ID laws have been taken off the table in Texas and Wisconsin. The Justice Department has blocked such a law in South Carolina, which has appealed in federal court. In Florida and Ohio, early voting and voter-registration drives have been largely restored. New Hampshire is going ahead with its law, but voters who do not have the required document will be permitted to vote and have a month to verify their identity.

Strict voter ID laws remain in Kansas, Indiana, Georgia and Tennessee, but they are not seen as battleground states. And while Pennsylvania seems likely to institute a version of its law in the coming year, it will not affect this election.

Several pointed out that the statute is clear by saying the filing “must” be verified within 30 days. And Justice Robert D. Rucker pointed out there have to be consequences if rules are to mean anything.

“Must means must,” he said.

Others seemed bothered the case could be kicked for omitting a single line in a filing.

Justice Mark Massa said the commission’s argument “elevates form over substance.” He also said other areas of the law allow for these types of procedural amendments.

“We don’t close the courthouse doors to people because they forgot to cross their t’s and dot their i’s,” he said.

However, last yesterday afternoon the Court filed this order vacating transfer. From the order:

By order dated July 26, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and further discussion among the justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported as St. Joseph Hosp. v. Cain, 937 N.E.2d 903 (Ind. Ct. App. 2010), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.

Who is responsible when fraternity boys engage in impromptu activities that escalate to the point where one of them is seriously injured? In this case, eighteen-year-old Wabash College freshman Brian Yost and his fraternity pledge brothers decided to throw an upperclassman brother in a nearby creek to celebrate his twenty-first birthday. Afterwards, they tried to do the same thing to two other upperclassman brothers, but they were unsuccessful. Shortly thereafter, four upperclassman brothers decided to carry Yost to the shower and run water on him. On the way to the bathroom, upperclassman Nathan Cravens joined the group and placed Yost in a chokehold. Yost went limp, and the brothers dropped him on the floor. He suffered physical and mental injuries and had to withdraw from school.

Yost now appeals, claiming that the trial court erred in granting summary judgment in favor of Wabash and the Phi Psi Defendants (collectively, “Appellees”). Specifically, he contends that the trial court erred in concluding as a matter of law that (1) Appellees were not negligent because they owed him no duty to protect him from the activities that led to his injuries; (2) Appellees did not assume a duty to Yost; (3) Appellees are not vicariously liable; and (4) Appellees are not liable for punitive damages. Finding that the designated evidence supports summary judgment in favor of the Appellees, we affirm. * * *

BRADFORD, J., concurs.
VAIDIK, J., concurs in part and dissents in part with separate opinion. [which begins on p. 38] Based on the designated evidence, I agree with the majority’s decision to affirm summary judgment in favor of Phi Psi National, but I respectfully dissent from the majority’s decision that Yost failed to establish a genuine issue of material fact regarding whether Wabash and Phi Psi owed him a duty of care under the circumstances. I find that there is an issue of fact concerning whether the events of that night constituted criminal hazing and whether they were reasonably foreseeable to Wabash. I also find that there is an issue of fact over whether Phi Psi assumed a duty of care toward Yost. I therefore believe that the trial court erred by granting summary judgment in favor of both Wabash and Phi Psi. * * *

All said, I believe that the designated facts could reasonably lead a trier of fact to conclude that hazing occurred here—hazing that both Phi Psi and Wabash had a duty to stop yet ignored. Because of this, I believe that this is a jury’s call and not ours.

In the instant matter we are faced with the troublesome situation of reviewing an individual’s convictions relating to an unspeakable crime in light of an apparent violation of the convicted individual’s Fourth Amendment rights. In reviewing this matter, we must consider to what extent certain statements made by the convicted individual must be suppressed following an episode of police misconduct. * * *

Joseph contends that the trial court abused its discretion in admitting the statements that he made to Detective Brown following the warrantless entry into and search of his apartment by Officers Winters and Hoehn. Specifically, Joseph argues that his statements to Detective Brown constitute “fruit of the poisonous tree” and, therefore, were inadmissible at trial. * * *

The record indicates that while Joseph was given his Miranda advisements at least two times and was transported to the police station prior to making his statements to Detective Brown, it also indicates that Joseph was in constant police custody from the time that Officers Winters and Hoehn initiated the illegal search of his apartment and was aware that their search had resulted in the discovery of potentially relevant evidence. Joseph was questioned about this evidence by both the officers at the scene and Detective Brown at the police station. In addition, nothing in the record indicates that Joseph had any way of knowing that the potential evidence found in his apartment and his statements to Officers Winters and Hoehn would later be suppressed from trial when he spoke to Detective Brown. Based on these facts, especially the fact that Joseph was in constant police custody from the time of their illegal entry into and search of his apartment, knew what potential evidence had been discovered in his apartment, and had made prior potentially incriminating statements to Officers Winters and Hoehn, we cannot conclude that Joseph’s comments to Detective Brown were sufficiently attenuated from the illegal search of his apartment to dissipate any taint of the illegal police conduct. As such, we conclude that the trial court abused its discretion in admitting Joseph’s statements to Detective Brown at trial. The judgment of the trial court is reversed.

Judges and lawyers from several counties in Northwest Indiana celebrated Margret G. Robb, who was appointed to the Court of Appeals of Indiana in July 1998 by Gov. Frank O’Bannon.

In 2011, she began a three-year term as chief judge.

Women Lawyers Association President Melissa Cohen said Robb “is the face of the court. For those of us who follow behind her, that is important,” she said.

Speaking to the judges, lawyers and dignitaries in the room, Robb told them they “make Indiana better.” Robb said she’s been privileged to have so many people mentor her and hopes she could help those following her in the practice of law.

“One of the things that have been wonderful during my time as a lawyer is the changing of the landscape of the practice of law,” she said. “Women were once treated as children. It makes sense for women to have equality.”

Prior to her appointment to the court, Robb, for 20 years, practiced general law in Lafayette and served as a Chapter 11, 12 and a standing Chapter 7 bankruptcy trustee for the Northern District of Indiana. She also was a registered family and civil mediator and served as a Tippecanoe County deputy public defender.

Daniel Vinovich, president-elect, Indiana State Bar Association, said the bar is going to work on diversity. “Diversity helps, studies have shown, provide more broad perspectives," he said. "They make organizations and associations better.”

Robb holds a bachelor's and master's in business economics from Purdue University; she was a magna cum laude graduate of Indiana University Robert H. McKinney School of Law; and is a graduate of the Graduate Program for Indiana Judges.

Ind. Gov't. - More on "Hoosiers may pay $1.1B over 8 years to subsidize coal-gas plant"

In an agreement that received little notice in northern Indiana, the state’s appointed finance authority signed a long-term deal with a private company that gets Indiana into the natural gas business, at a price that will cost both taxpayers and anyone who uses natural gas to heat their homes, water heaters or other appliances.

Just how big a price is uncertain, but a natural gas provider opposing the deal pegs it at more than $1 billion.

Leucadia National Corp. will use coal to make natural gas at a new plant in Rockport, on the Ohio River about 30 miles east of Evansville. As the Indianapolis Star reported, state government will pay $6.60 per 1 million BTUs of natural gas. When the state and the company first began talking, the state was getting a good price. But since then, natural gas has become much more plentiful – dropping the price to $3 per million.

That means if the plant opened tomorrow, the state government would buy natural gas for twice the price it would garner on the open market.

The state hopes to sell the gas for a profit. If prices go back up, it could turn into a great deal for Indiana. But if prices remain stable, Hoosier taxpayers will have to subsidize big losses. And that $6.60 price will rise with inflation.

It will take a long time for the state to get out of the deal. The finance authority, with Gov. Mitch Daniels’ blessing, signed a 30-year contract requiring the state to buy the natural gas.

Vectren, a natural gas company that opposes the arrangement, said Hoosiers will end up paying more than $1 billion to subsidize the plant and that the average bill of all natural gas customers in Indiana will rise $3.90 a month.

Mark Lubbers, the director of the project for a Leucadia subsidiary, called Vectren’s numbers “absurd.”

Monday, October 01, 2012

Ind. Law - "Marion County Sheriff's office changing how it deals with sex offenders" [Updated]

This story was posted late this afternoon by Alex Campbell of the Indianapolis Star. The post notes the story will be updated. It begins:

The Marion County Sheriff’s office has changed how it deals with sex offenders who end up in jail again — and has already arrested 18 people as a result, officials announced Monday.

The announcement comes on the heels of an Aug. 5 Indianapolis Star investigation which found that sex offender Shawn Corbally had been released from jail just days before police say he brutally raped a woman in Greenwood.

With Corbally still in jail, authorities had uncovered evidence he had violated his sex offender registration, by moving without notifying authorities. * * *

Five hours after that interview, Corbally was let out of jail. Five days later, he broke into a Greenwood woman’s home and brutally raped her multiple times, according to police. Sheriff’s deputies didn’t file paperwork for a failure-to-register warrant until the day after Corbally was arrested.

The story on progress didn't yet report precisely how the Marion County Sheriff’s office has changed how it deals with sex offenders who end up in jail again.

[Updated Oct. 2 at 9:13 AM] The version of the story in today's paper includes:

[O]n Aug. 10 the sheriff’s office started a new procedure: Now, every time a sex offender is brought to jail, he faces an interview with the agency’s compliance unit.

So far, the sheriff’s office has conducted 86 such interviews. One out of every five has led to a felony sex offender registration charge.

Even as they touted the success of this new policy, sheriff’s officials said that it likely would not have been enough to stop Corbally from being released. The in-house investigation “found no breach” of departmental rules and regulations, a press release said. * * *

Failure-to-register cases are “time-consuming,” said deputy prosecutor Kim Rasheed, because they require coordination and paperwork across county borders.

“It’s unfortunate that all of this couldn’t have been put together quicker,” Rasheed said, “but these cases take time.”

Sheriff Layton expressed similar sentiments. His office now puts sex offenders in white jumpsuits instead of the normal orange so they can be easily identified, but he said he doubts that would have made a difference in the Corbally case, either.

Corbally’s alleged rape victim questioned the sheriff’s determination that the new policy would not have prevented Corbally’s release. Nonetheless, she said she was “glad” to hear of the procedural changes, though it was “unfortunate” that a rape had to happen to bring change.

Layton wants lawmakers to go a step further. He wants to require offenders to check in with the sheriff’s office if they plan to leave the county for more than a few days. The problem with Corbally, he said, is that when he went to his mother’s house, he brought no possessions with him, so it was tough to establish residency.

If an offender at least had to check in with officials before he left, Layton said, authorities would know his supposed whereabouts.

Layton’s move allows the agency to be proactive, and there’s nothing wrong with putting one more set of eyes on offenders, said Steve Luce, executive director of the statewide Indiana Sheriffs’ Association.

There is little room for error. All it takes is one person to slip through and commit a new crime, Luce said. “That’s the one that’s going to make the six o’clock news.”

Jessica M. Karmasek reports this afternoon in Legal Newsline that the SCOTUS has:

... refused to hear an appeal in a lawsuit over the Iowa Judicial Nominating Commission's makeup.

The nation's high court denied to review the case, Carlson, Steven, et al. v. Wiggins, Justice, etc., et al., according to an 88-page order list released Monday.

Plaintiffs Steven Carlson, Mary Granzow, Richard Kettells and William Ramsey -- represented by the James Madison Center for Free Speech and a group of Indiana lawyers [ILB - i.e. James Bopp] -- filed their lawsuit in the U.S. District Court for the Southern District of Iowa back in December 2010.

The plaintiffs challenged sections of the Iowa Constitution and state code, arguing that the system they establish excludes Iowa voters from participation in the election of the elected attorney members of the state Judicial Nominating Commission; denies voters the right to equal participation in the selection of state Supreme Court justices; and denies them the right to vote for the elected attorney members of the commission. * * *

The federal [district court for the SD Iowa - see entry here] -- and the U.S. Court of Appeals for the Eighth Circuit in April -- said the current system doesn't violate voters' rights.

In July, the plaintiffs asked the U.S. Supreme Court to review the case.

Justice Wiggins is running for retention this year. See this ILB entry from May 13, 2012, and this one from Sept. 25, 2012. And this one from Dec. 5, 2010.

Re the Criminal Code Commission, Maureen Hayden of CNHI had this story Sunday headed "Have you committed a class D felony?" It gives an overview of the work of the Commission. It also had this interesting account:

At a recent meeting of the state’s Criminal Code Evaluation Commission, one of the members described a class D felony as the kind of crime most people have committed but just hadn’t been caught for it. * * *

In Indiana, a class D felony is the lowest level of serious crime; it can land you in prison for six months to three years. Here some examples of class D felony crimes: burglary, battery, cheating at gambling, cruelty to animals, cultivating marijuana, domestic battery, fraud, impersonating a public servant, moving a body from the scene of a death, obstruction of justice, perjury, possession of a sawed-off shotgun, prostitution and public indecency.

The list goes on and on, but here’s just a few more: criminal deviate conduct, dispensing of material harmful to minors, disposing of a dead animal, driving while intoxicated, exploiting an endangered adult, failure to warn of a communicable disease, illegal possession of a vehicle identification number, invasion of privacy, stalking, strangulation, prescription fraud and tampering with an odometer.

There are some drug possession crimes on the list, too, including possession of more than 30 grams of marijuana, about one ounce.

[Updated at 3:35 PM] The ILB has received several communications about the story quoted here, questioning that burglary is ever a D felony and noting that others (OVWI, public indecency, etc.) are only D felonies when someone has a prior. No one, however, has been willing to go on the record. I will forward the comments to the reporter.

[Updated at 6:24 PM]

Maureen Hayden, a reporter whose careful work I respect a great deal, was quick to respond to my inquiry. She said her list was based on the 2011 annual report from the Dept of Corrections, which includes, beginning on page 22 (p. 26 of the PDF), a list of what DOC inmates are in for. Take a look.

With many of the crimes on the DOC list, it looks likely that the crime is only a D felony (rather than a misdemeanor) because the person had a prior conviction. But in that case the person would have known it was a crime with the first conviction--before it became a felony, negating the premise of the story that you may have committed a Class D felony without knowing it.

As to the burglary included on the DOC list of D felonies, I have no explanation ...

Courts - "Cook County judges routinely have hidden hundreds of cases from public view since 2000, sealing lawsuits involving a famous chef, millionaire businessmen and even other judges"

On the eighth floor of the Daley Center, behind a locked metal door, is a narrow room known as the vault.

Within its walls reside files that Cook County Circuit Court judges have ordered hidden from the public, something they have done hundreds of times since 2000.

Although state law requires that certain types of lawsuits must be sealed, a Tribune investigation has found that judges improperly removed others from public view, including cases involving a famous chef, millionaire businessmen and even other judges.

The Tribune's review of cases found that judges regularly fail to give a reason in their written orders for sealing files; hide entire case files when they needed only to remove sensitive information such as Social Security numbers or home addresses; and that the sealing orders often remain secret despite state case law finding orders are public documents and "should not be kept under seal."

Courts in the United States have a long tradition of openness, and experts say court secrecy fosters mistrust and can put public safety at risk.

"These cases go to the integrity of the courts system," said Arthur Bryant, executive director of Public Justice, a Washington, D.C.-based group that has fought for openness in the courts. "It is hard to have a democratic system, or one that works to make sure the law is just and the courts are fair, if what happens in the courts is secret."

Later in the long story:

[Then-Judge Wayne Rhine] said he did not recall who requested that the case be hidden, but he had no problem sealing it.

"I didn't want two sitting judges hanging out their dirty laundry," he said. "If they run for retention or for another office, this could come back to haunt them. I did it as an accommodation for fellow judges." * * *

Under state law, certain cases must be sealed — such as those involving children, the mentally ill and whistle-blowers.

Judges, however, are largely left on their own in determining whether to take the extraordinary step of hiding cases in a court system paid for with tax dollars.

The Cook County Circuit Court clerk provided numbers of cases sealed since 2000 for the Law, Civil, Domestic Relations, Probate and Chancery divisions. At least 436 cases were sealed in the Law Division and hundreds more in the others.

The Tribune focused on the Law Division, where lawyers file more than 15,000 lawsuits every year. The cases involve large legal disputes over matters such as product liability, medical malpractice and wrongful death.

Many of the Law Division cases sealed involve whistle-blower lawsuits. But many others still remain hidden from the public, including personal injury complaints and disputes between companies.

A Tribune analysis found that 166 of the 436 cases remained sealed as of July 1. In nearly 100 cases, both the plaintiffs' and defendants' identities also remained secret.

The cases where the files are sealed but the names are public include powerful institutions, corporations, government agencies and influential individuals — the Archdiocese of Chicago; the Mormon church; Sears, Roebuck & Co.; Illinois Department of Children and Family Services; the Chicago Park District; Cook County Hospital; and TV news anchorman Walter Jacobson. Jacobson, who at the time worked for Fox News, said Friday he did not recall the 2001 libel/slander case.

Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)

Appellant Scott F. West was held to answer on marijuana charges for more than a year without a trial date while a motion to suppress awaited a ruling. He is entitled to discharge under Indiana Criminal Rule 4(C). * * *

On August 27, 2010, West amended his proposed findings and responded to those of the State.

The case then sat for a year with virtually no activity. There are no entries in the chronological case summary in the year following West’s August 27, 2010, submissions, though the record shows that the court called defense counsel’s office on October 1, 2010, for the final pre-trial conference, but counsel missed it because he was waiting at home for the phone call. The conference was not rescheduled.

On August 29, 2011, West filed a praecipe to remove Judge Trout pursuant to Indiana Trial Rule 53.1. In November 2011, the Supreme Court appointed Judge Blaine Akers as a special judge.

In December 2011, West moved for discharge pursuant to Indiana Criminal Rule 4(C). The court denied the motion. Upon West’s request, the court certified its order for interlocutory appeal, and this Court accepted jurisdiction. * * *

The State had an affirmative duty to bring West to trial within one year as provided by Rule 4(C). See Cook v. State, 810 N.E.2d 1064, 1065 (Ind. 2004). It did not do so. Although we recognize that the court failed to timely rule on the suppression motion, the State could have filed a praecipe under Trial Rule 53.1 for withdrawal of submission and transfer to the Supreme Court for appointment of a special judge. West was not obliged to ask for a trial date.

Because more than one year had passed for purposes of Rule 4(C), the trial court erred by denying West’s motion for discharge. We therefore reverse.

Ind. Decisions - Transfer list for week ending September 28, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

In Re: The Visitation of M.L.B., K.J.R. v. M.A.B. - This was a June 14, 2012 NFP COA opinion about which the ILB wrote at the time: "This is a 2-1 grandparent visitation rights opinion that might have been classified as 'For Publication' (IMHO)."

Anthony Wade v. Terex-Telelect, Inc. - This was a 2-1 April 11, 2012 COA opinion reversing the trial court on a jury instruction in a products liability case.

In Re: Prosecutor's Subpoena Regarding S.H. and S.C., S.H. v. State of Indiana - This was a June 22, 2012 COA opinion (3rd case):

S.H. and S.C. (collectively, “Parents”) appeal a trial court order granting the State’s petition to compel their testimony by providing use immunity. Parents argue a prosecutor may not grant use immunity when there is no grand jury proceeding and the persons whose testimony is sought have not been charged with a crime. * * *

While Parents’ argument is persuasive, we cannot reconcile the result they advocate with our Indiana Supreme Court’s statement that a prosecutor has the same ability to accumulate evidence as does a grand jury. We must agree with the State that the legislature’s explicit reference to grand jury proceedings in Ind. Code § 35-34-2-8 cannot be read to restrict the right of a prosecutor to seek use immunity when prosecution is initiated by means of an information rather than an indictment. Nor could the legislature have intended that prosecutors have fewer investigative tools before deciding to bring charges than they do after charges are brought. We accordingly affirm the trial court.

Bill Dolan's has a story in today's NWI Times headed "State auditors say some numbers don't add up for Lake officials." A quote:

State auditors also reported the clerk failed to void outstanding checks, some more than two years old, and didn't charge criminal defendants all the court fees required by state law if their charges are dismissed through the prosecutor's pretrial diversion program. It said some defendants were only charged $110 or $170, instead of an amount that could total more than $200.

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of (10/1/12):

No arguments currently scheduled.

Next week's oral arguments before the Supreme Court (week of (10/8/12):

Thursday, October 11th

9:00 AM - Brandy L. Walczak, et al. v. Labor Works – Fort Wayne, LLC, et al. (02S04-1208-PL-497) - In this wage dispute, the trial court awarded summary judgment to Labor Works based on the court’s determination that Walczak’s complaint was governed by the Wage Claims Statute, and not the Wage Payment Statute, and therefore should have first been submitted to the Indiana Department of Labor. The Court of Appeals reversed and remanded with instructions to dismiss the complaint, holding that the determination of which statute governs Walczak’s complaint must first be made by the Department, not the trial court. Walczak v. Labor Works – Fort Wayne, LLC, 966 N.E.2d 642 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: This was a March 5th, 2012 COA NFP opinion stating "We believe that * * * this is precisely the type of fact-sensitive inquiry that should be resolved in the first instance by the administrative agency."

9:45 AM - Loren Fry v. State of Indiana (09S00-1205-CR-361) - Appellant Loren Fry was charged with murder and requested bail. Article 1, Section 17, of the Indiana Constitution provides that murder is not a bailable offense “when the proof is evident, or the presumption strong.” Indiana Code section 35-38-8-2(b) states that the defendant has the burden of proof that he should be admitted to bail. Fry sought a declaratory judgment that the statute is unconstitutional because it removed the presumption that he was innocent and entitled to bail and put the burden of proof on him. The trial court ordered the that State should first show that the proof was evident, and then Fry would have the burden to convince the court that he should be admitted to bail. The trial court concluded that to the extent the statute conflicted with this procedure, the statute violates the state constitution. The trial court denied bail. This case was docketed as a direct appeal.

This week's oral arguments before the Court of Appeals (week of 9/24/12):

This week's oral arguments before the Court of Appeals (week of 10/1/12):

Wednesday, October 3rd

[CANCELLED]1:30 PM - Amerisafe Risk Services, Inc., et al, vs. Estate of Hazel Wadsack, et al (88A01-1204-CT-144) - Due to serious injuries Ronald Matthew Wadsack suffered in 2008 while working for Mills Tree Service, his parents, Hazel and Ronald, were appointed temporary guardians of his person and estate. Amerisafe Risk Services, Inc. was the worker’s compensation insurer for Mills Tree Service and Leerae Riggs was the case manager assigned to Wadsack’s claim. In 2010, Ronald, individually and as personal representative of Hazel’s estate, filed a complaint against Amerisafe and Riggs, seeking damages for emotional distress and Hazel’s death arising because of the handling of Wadsack’s claim. Amerisafe filed a motion to dismiss, contending the exclusivity provision of the Indiana Worker’s Compensation Act requires the claim to first be presented to the Worker’s Compensation Board. In this interlocutory appeal of the trial court’s denial of its motion, Amerisafe contends the Board has exclusive jurisdiction over this third party claim against a worker’s compensation insurance carrier. Ronald and the Estate assert the Act provides no remedy for their independent claims and the trial court therefore has jurisdiction over their complaint. The Scheduled Panel Members are: Chief Judge Robb, Judges Baker and Bradford. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

Next week's oral arguments before the Court of Appeals (week of 10/8/12):

Tuesday, October 9th

1:00 PM - Verdyer O. Clark vs. State of Indiana ( 49A04-1202-CR-66) - Verdyer Clark was convicted of battery as a Class D felony, which required the State to prove the battery caused injury to a person less than fourteen years old and was committed by a person at least eighteen years old. Clark argues the State did not prove its case because its only evidence he was over eighteen was inadmissible hearsay. The Scheduled Panel Members are: Judges Baker, May and Senior Judge Shepard. [Where: Vanderburgh County Old Courthouse, Randall T. Shepard Courtroom, Evansville, Indiana]

Thursday, October 11th

10:00 AM - Boulder Acquisition Corp., et al, vs. Unemployment Insurance Appeals of the Indiana Department of Workforce Development (93A02-1202-EX-127) - After Boulder Acquisition Corporation (“BAC”) merged with Affiliated Computer Services, Inc. (“ACS”), the Indiana Department of Workforce Development determined that BAC was the successor employer for ACS and each of ACS’s 26 subsidiaries. Therefore, the Department combined the 27 previously separate experience accounts for purposes of unemployment contributions into a single account and assessed a single contribution rate. BAC protested the determination, but the Liability Administrative Law Judge agreed with the Department, concluding BAC was the successor employer to ACS and all of its subsidiaries because it had acquired “the organization, trade, or business, or substantially all the assets” of ACS and the subsidiaries. BAC now appeals, contending it acquired only ACS, such that the Department’s determination should be reversed, separate experience accounts restored, contribution rates readjusted, and overpayments by BAC refunded. The Scheduled Panel Members are: Chief Judge Robb, Judges Baker and Bradford. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

11:00 AM - Leslie Bridges, individually and as Class Representative of all thos similarly situated vs. Veolia Water Indianapolis, LLC, et al (49A02-1112-CC-1097) - Appellant-Plaintiff Leslie Bridges, individually and as Class Representative of all those similarly situated, appeals the trial court’s order granting Appellees-Defendants Veolia Water Indianapolis, LLC’s, Veolia Water North America Operating Service, LLC’s, and the City of Indianapolis, Department of Waterworks’s (collectively, “Appellees”) motion to dismiss. In granting the Appellees’ motion, the trial court found that Appellant had failed to exhaust the available administrative remedies. In arguing that the trial court erred in dismissing her claims against the Appellees, Appellant contends that she was not required to exhaust administrative remedies before filing suit against the Appellees in the trial court. Appellees, for their part, contend that the trial court properly granted their motion to dismiss The Scheduled Panel Members are: Chief Judge Robb, Judge Bradford and Sr. Judge Shepard. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.